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A Cautionary Tale When Objecting to an Appointment of Estate Trustee with a Will

Re: Lawrence, 2019 ONSC 373; Additional reasons, 2019 ONSC 373 (Ont. S.C.J.) http://canlii.ca/t/hx9pn  

Parties to estate litigation must be careful to not file Notices of Objection that are based on suspicions or opinions without corroborating evidence. Otherwise, they risk having costs awarded against them and findings of fact made by a judge that may make advancing separate claims more difficult.

The son and daughter (the “Respondents”) of their deceased father, representing themselves, filed an objection to the step-mother’s request for certificate of appointment as executor with a will. Respondents also commenced an action to set aside the testator’s marriage and the transfer of the matrimonial home to joint tenancy, and brought a motion to consolidate their action with the estate proceeding. Respondents argued that the motion for directions should await the outcome of their separate action.

When the husband’s first wife passed away, he withdrew from his children and spent his time on the internet and proceeded to lose much of his savings on Nigerian lonely hearts frauds. In 2012 he met his prospective wife (the Applicant) online. She was working at a daycare centre in Dubai at the time and is a Philippines national. On January 2013 the deceased went to Dubai and married her. He was 77 and she was 50.  She came to Canada in 2015. He then transferred ownership of his residence from himself to his spouse in joint tenancy and executed a will naming her executrix and dividing the residue of his estate among the Applicant and the two children, 40/30/30. On March 6, 2017, at the age of 81, the father died.

The Court ordered that a certificate of appointment of estate trustee with a will shall issue as there was no evidence to cast doubt on the testator’s ability to contract a marriage, make a will or transfer property. The children offered no evidence but just observations and opinions. While two powers of attorney in favour of his daughter were executed, they were not utilized as he was never found to be incapable despite the fact he “…preferred to spend his time indulging his fantasies with overseas fraudsmen and internet pornography.” While the son thought he was delusional, the judge found it was as equally likely the deceased “simply having weak character and bad judgment”.

The judge found that the marriage was to the mutual advantage of the testator and the Applicant. She came to Canada and took care of him for the rest of his life. He could not even manage basic housework when he was on his own. An Anglican minister performed the marriage and provided evidence that after the marriage he brightened up and seemed happier. The transfer of property and making a new will were done under the supervision of a lawyer.

The Respondents did not provide any evidence to support the assertions they were making and so their Notice of Objection was unsuccessful. The judge found no reason not to appoint her as executor, and found little merit to the childrens’ action.

The judge’s order included the following: that the estate pay the debt owed to TD Bank on a line of credit; that the amounts paid to TD due to delay be paid out of the Respondents’ share of the estate; that the Respondents pay for the costs associated with a motion for a certificate of pending litigation they had brought and abandoned on a substantial indemnity basis; and that the Respondents pay an amount on account of increased borrowing costs incurred by the estate. The Applicant was entitled to her legal expenses from the estate. In additional reasons, the court awarded costs for the motion for directions under Rule 75.06 on a partial indemnity basis at $35,000.

While the father’s online activity may quite well have been the result of bad judgement and weak character, it is also possible that it was an early sign of diminished mental capacity. However, such behaviour is unlikely to support claims of lack of capacity to marry or dispose of property if not substantiated by other evidence. These disputes continue to make their way before our courts and present difficulties from an evidentiary perspective.

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