Kacin v. Kacin, 2024 ONSC 3345

 Facts:

Lidia Kacin (the “Deceased”) passed away in 2023, leaving behind her three children, Yelka, Edward (the “Respondents”) and Martina (the “Applicant”). The Deceased’s relationship with her children was fraught with tension, given her mental health issues that often-required “hospitalization and police intervention.”^[1]

Yelka was the only one of her siblings to maintain a relationship with the Deceased, including tending to her care. In 2020, Yelka was appointed as the Deceased’s guardian and trustee until her death. Meanwhile, Edward and Martina had not seen their mother since 2011.

The Deceased created two sets of Wills. In 2001, the Deceased executed a Will (the “2001 Will”) naming Yelka as the sole beneficiary. In 2011, the Deceased executed yet another Will, proving to be her Last Will and Testament (the “2011 Will”), without informing her children. The Deceased’s children did not learn of the 2011 Will until 2020. The 2011 Will appointed Martina as the sole beneficiary, despite her estrangement from the Deceased. The Deceased’s reasoning was that she “ha[d] already provided significant gifts to her daughter Yelka over the years and received indications that her son was financially independent”.^[2] The Deceased’s estate consisted of $175,000 of GICs.

The physical 2011 Will could not be located, however, Marina sought to have the 2011 Will probated in its “copy form” as provided by the original drafting lawyer who holds a copy of the 2011 will.^[3] The Applicant sought an order giving directions for several issues, but mainly whether the established issues are to be adjudicated at a hearing on the merits, and whether the copy of the 2011 Will could be probated. As for the Respondents, they sought an order for the appointment of an estate trustee during litigation.

Probating the Lost will:

In determining the whether a hearing on the merits is required, the Applicant must prove the following four elements to successfully probate the 2011 will, as outlined by Sorkos v Cowderoy:

1. Due execution of the will;
2. Particulars tracing possession of the will to the date of death, an afterwards if the will was lost after death;
3. Rebuttal of the presumption that the will was destroyed by the testator with the intention of revoking it; and
4. Proof of the contents of the lost will.

The court determined that the Applicant had fulfilled the first and fourth elements but would have to proceed to a motion to determine the remaining second and third elements.

Should there be an Appointment of an Estate Trustee:

The Respondents sought the appointment of an estate trustee. However, the Applicant objected to this appointment on the basis that it would create unnecessary cost for the modest estate. Additionally, the Applicant argued that as the sole beneficiary of the estate, it wouldn’t be fair for the estate trustee to be paid in full out of the estate funds. The court clarified the important duty of an estate trustee through the following:

[15] An Estate Trustee allows for a level playing field in managing the affairs and funds of an estate particularly where there are conflicts between the trustee and beneficiaries. Consequently, the appointment of an Estate Trustee during litigation is not an extraordinary measure and the court should refuse such an appointment only in the clearest of cases: Baran v Cranston, 2020 ONSC 589 at para 28.^[4]

The court, in agreement with the Respondents, determined that the appointment of an estate trustee was warranted due to the “adverse position of the parties, the long-term and elevated level of family conflict between the siblings dating back to their childhood, and their differing views on productions as well as the process and costs for such productions”. The court determined such despite the modest size of estate.

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[1] Kacin v. Kacin, 2024 ONSC 3345 (“Kacin”)

[2] Kancin at para 4.

[3] Ibid at para 5.

[4] Ibid at para 16.