Disputes over modest estates can quickly become emotionally charged and procedurally complex. In McCorkell v. Roos[1], 2025 ONSC 6432, Justice Muszynski confronts such a dispute, recognizing that the volume of materials, the length of submissions, and the procedural manoeuvres far exceeded what the estate justified. Yet, the Court offers clear guidance on three recurring issues in estates practice: the admissibility of late affidavit evidence, the application of the Pecore presumption to parent–child transfers, and the circumstances under which estate trustees may be disentitled to compensation.
Background
Irene Lavendure (the “Deceased”) died in July 2023, leaving three adult children; Karen, Stewart (also known as Derek), and Darryl, as equal beneficiaries under her 2010 will.[2] The Deceased left a modest Estate. The family had already fractured years earlier after their father’s estate benefited only Stewart, and tensions resurfaced during the Deceased’s final illness.
In late 2022, the Deceased was diagnosed with terminal pancreatic cancer. Karen, acting under a Continuing Power of Attorney for Property executed in 2010, became responsible for managing the Deceased’s finances.[3] Conflict quickly developed around the question of discharge: health-care providers recommended assisted living, while Stewart disagreed and continued visiting – and recording – his mother in the hospital, often discussing the finances and the long-standing dispute about a $22,000 transfer (or loan) the Deceased made to him in 2010.[4]
The Deceased ultimately moved into long-term care. Karen and her family prepared the sale of the Deceased’s home. The house sold in May 2023, and the Deceased distributed $75,000 to each child from the proceeds.[5]
After the Deceased’s death, Karen obtained a Certificate of Appointment of Estate Trustee with a Will.[6] Although both the Deceased and Daryl were appointed under the 2010 will, Daryl renounced his role.
Due to bank delays in issuing estate cheques, Karen transferred Estate funds into her own account to pay outstanding debts, and, believing Stewart owed $22,000 back to the estate, advanced the same amount to Darryl to “even things up.”[7]
Once she consulted counsel, Karen reversed these decisions, returned funds to the estate account, secured repayment from Darryl, addressed a $2,000 pre-death gift the Deceased had intended for a grandchild, and delivered extensive accounting materials.[8] Stewart nonetheless commenced an application seeking payment of what he viewed as his share or, alternatively, an order compelling Karen to pass accounts.
Issues[9]
- Should Stewart be granted leave to file further affidavit evidence?
- Was the $22,000 payment from the Deceased to Stewart a gift or a loan?
- Is Karen entitled to compensation as estate trustee?
Analysis
1. Leave to File Further Affidavit Evidence
Stewart sought to introduce two new affidavits shortly before the hearing, including a report from a handwriting expert who opined that a notation in the Deceased’s notebook stating “My son Derek owes me $22,000” was not written by the Deceased.[10] Justice Muszynski refused leave under Rule 39.03(2), which prohibits post cross-examination affidavits unless they respond to a new matter raised in cross-examination.[11]
The Court found that nothing about the notebook or the notation was new. Stewart had a copy of the relevant page in August 2024, alleged forgery by December 2024, and did not request the original notebook until August 2025.[12] Cross-examinations revealed no new developments that could justify late evidence.
Allowing the evidence would also require adjournment and additional expense, out of all proportion to the modest amounts in dispute.[13] In keeping with the principle of proportionality that frames the entire decision, leave was denied.
2. Gift or Loan: The Presumption of Resulting Trust Applies
The central substantive issue was the characterization of the $22,000 transfer to Stewart in 2010. Applying Pecore v. Pecore[14], 2007 SCC 17, the Court affirmed that transfers from parents to independent adult children are presumptively held on resulting trust.[15] Stewart therefore bore the burden of proving that the Deceased intended a gift at the time of the transfer.
Justice Muszynski found that Stewart failed to rebut the presumption. His claim that the cheque had “gift” written on it was unsupported – he produced no copy and showed no meaningful effort to obtain one.[16] By contrast, Karen and Darryl both testified that the Deceased treated the transfer as a loan, repayable once Stewart was financially able. Their testimony was consistent with the Deceased’s long-standing pattern of dividing significant gifts equally among the children.[17]
The videos Stewart recorded of the Deceased did not support his position. In none of them did the Deceased confirm that the $22,000 was a gift, and her references to wanting the other children to be “paid back” aligned more naturally with a loan.[18]
Although the handwritten notation in the Deceased’s notebook was further evidence of her intention, Justice Muszynski emphasized that the finding did not depend on it. Even without the notebook, the totality of the evidence pointed in one direction: the Deceased loaned Stewart $22,000, and that debt remained payable to the estate.
3. Estate Trustee Compensation
Stewart argued that Karen should be disentitled to estate trustee compensation due to[19]:
- co-mingling estate funds with her personal account,
- perceived animus toward him, and
- the alleged notebook forgery.
Justice Muszynski rejected each argument.
Co-mingling estate and personal funds is generally improper, but the Court accepted Karen’s explanation that the bank’s delay in issuing estate cheques left her unable to pay urgent debts.[20] She took steps promptly, albeit misguidedly, to keep the estate moving, and corrected course once she obtained legal advice. All funds were ultimately accounted for, distinguishing this case from Zimmerman v. McMichael Estate[21], 2010 ONSC 2947 where serious breaches of trust justified disentitlement.
The Court also rejected the allegation of forgery, noting that even if the expert report had been admitted, it had shortcomings.[22]
Importantly, Justice Muszynski reiterated that an estate trustee is not held to a standard of perfection, and only exceptional misconduct warrants denying compensation.[23] Karen administered a modest but complicated estate, settled all debts, sold the home, secured a CRA clearance certificate, and provided thorough documentation. On that basis, she was entitled to the 2.5% compensation she sought.
Final Thoughts
McCorkell v. Roos is a case study in how small estates can become entangled in costly, emotionally charged litigation. The decision reinforces three enduring principles:
- Proportionality must guide both litigation strategy and judicial reasoning. Late evidence, expanded proceedings, and expert battles have no place where the amounts at stake cannot justify them.
- Pecore remains a powerful and predictable framework. Adult children seeking to characterize parental transfers as gifts face a real evidentiary burden.
- Estate trustees will not be stripped of compensation for honest mistakes. Courts distinguish between poor judgment and bad faith.
—
[1] McCorkell v. Roos, 2025 ONSC 6432 [McCorkell].
[2] Ibid at para 3.
[3] Ibid at para 5.
[4] Ibid at para 7.
[5] Ibid at para 8.
[6] Ibid at para 9.
[7] Ibid at para 11.
[8] Ibid at para 13.
[9] Ibid at para 23.
[10] Ibid at para 24.
[11] Ibid at paras 29-30.
[12] Ibid.
[13] Ibid at para 31.
[14] Pecore v. Pecore, 2007 SCC 17.
[15] McCorkell, supra note 1 at para 34.
[16] Ibid at para 37.
[17] Ibid.
[18] Ibid.
[19] Ibid at para 41.
[20] Ibid at para 47.
[21] Zimmerman v. McMichael Estate, 2010 ONSC 2947.
[22] McCorkell, supra note 1 at para 52.
[23] Ibid at para 50.
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Written by: Emily Caza
Posted on: December 9, 2025
Categories: Commentary
Disputes over modest estates can quickly become emotionally charged and procedurally complex. In McCorkell v. Roos[1], 2025 ONSC 6432, Justice Muszynski confronts such a dispute, recognizing that the volume of materials, the length of submissions, and the procedural manoeuvres far exceeded what the estate justified. Yet, the Court offers clear guidance on three recurring issues in estates practice: the admissibility of late affidavit evidence, the application of the Pecore presumption to parent–child transfers, and the circumstances under which estate trustees may be disentitled to compensation.
Background
Irene Lavendure (the “Deceased”) died in July 2023, leaving three adult children; Karen, Stewart (also known as Derek), and Darryl, as equal beneficiaries under her 2010 will.[2] The Deceased left a modest Estate. The family had already fractured years earlier after their father’s estate benefited only Stewart, and tensions resurfaced during the Deceased’s final illness.
In late 2022, the Deceased was diagnosed with terminal pancreatic cancer. Karen, acting under a Continuing Power of Attorney for Property executed in 2010, became responsible for managing the Deceased’s finances.[3] Conflict quickly developed around the question of discharge: health-care providers recommended assisted living, while Stewart disagreed and continued visiting – and recording – his mother in the hospital, often discussing the finances and the long-standing dispute about a $22,000 transfer (or loan) the Deceased made to him in 2010.[4]
The Deceased ultimately moved into long-term care. Karen and her family prepared the sale of the Deceased’s home. The house sold in May 2023, and the Deceased distributed $75,000 to each child from the proceeds.[5]
After the Deceased’s death, Karen obtained a Certificate of Appointment of Estate Trustee with a Will.[6] Although both the Deceased and Daryl were appointed under the 2010 will, Daryl renounced his role.
Due to bank delays in issuing estate cheques, Karen transferred Estate funds into her own account to pay outstanding debts, and, believing Stewart owed $22,000 back to the estate, advanced the same amount to Darryl to “even things up.”[7]
Once she consulted counsel, Karen reversed these decisions, returned funds to the estate account, secured repayment from Darryl, addressed a $2,000 pre-death gift the Deceased had intended for a grandchild, and delivered extensive accounting materials.[8] Stewart nonetheless commenced an application seeking payment of what he viewed as his share or, alternatively, an order compelling Karen to pass accounts.
Issues[9]
Analysis
1. Leave to File Further Affidavit Evidence
Stewart sought to introduce two new affidavits shortly before the hearing, including a report from a handwriting expert who opined that a notation in the Deceased’s notebook stating “My son Derek owes me $22,000” was not written by the Deceased.[10] Justice Muszynski refused leave under Rule 39.03(2), which prohibits post cross-examination affidavits unless they respond to a new matter raised in cross-examination.[11]
The Court found that nothing about the notebook or the notation was new. Stewart had a copy of the relevant page in August 2024, alleged forgery by December 2024, and did not request the original notebook until August 2025.[12] Cross-examinations revealed no new developments that could justify late evidence.
Allowing the evidence would also require adjournment and additional expense, out of all proportion to the modest amounts in dispute.[13] In keeping with the principle of proportionality that frames the entire decision, leave was denied.
2. Gift or Loan: The Presumption of Resulting Trust Applies
The central substantive issue was the characterization of the $22,000 transfer to Stewart in 2010. Applying Pecore v. Pecore[14], 2007 SCC 17, the Court affirmed that transfers from parents to independent adult children are presumptively held on resulting trust.[15] Stewart therefore bore the burden of proving that the Deceased intended a gift at the time of the transfer.
Justice Muszynski found that Stewart failed to rebut the presumption. His claim that the cheque had “gift” written on it was unsupported – he produced no copy and showed no meaningful effort to obtain one.[16] By contrast, Karen and Darryl both testified that the Deceased treated the transfer as a loan, repayable once Stewart was financially able. Their testimony was consistent with the Deceased’s long-standing pattern of dividing significant gifts equally among the children.[17]
The videos Stewart recorded of the Deceased did not support his position. In none of them did the Deceased confirm that the $22,000 was a gift, and her references to wanting the other children to be “paid back” aligned more naturally with a loan.[18]
Although the handwritten notation in the Deceased’s notebook was further evidence of her intention, Justice Muszynski emphasized that the finding did not depend on it. Even without the notebook, the totality of the evidence pointed in one direction: the Deceased loaned Stewart $22,000, and that debt remained payable to the estate.
3. Estate Trustee Compensation
Stewart argued that Karen should be disentitled to estate trustee compensation due to[19]:
Justice Muszynski rejected each argument.
Co-mingling estate and personal funds is generally improper, but the Court accepted Karen’s explanation that the bank’s delay in issuing estate cheques left her unable to pay urgent debts.[20] She took steps promptly, albeit misguidedly, to keep the estate moving, and corrected course once she obtained legal advice. All funds were ultimately accounted for, distinguishing this case from Zimmerman v. McMichael Estate[21], 2010 ONSC 2947 where serious breaches of trust justified disentitlement.
The Court also rejected the allegation of forgery, noting that even if the expert report had been admitted, it had shortcomings.[22]
Importantly, Justice Muszynski reiterated that an estate trustee is not held to a standard of perfection, and only exceptional misconduct warrants denying compensation.[23] Karen administered a modest but complicated estate, settled all debts, sold the home, secured a CRA clearance certificate, and provided thorough documentation. On that basis, she was entitled to the 2.5% compensation she sought.
Final Thoughts
McCorkell v. Roos is a case study in how small estates can become entangled in costly, emotionally charged litigation. The decision reinforces three enduring principles:
—
[1] McCorkell v. Roos, 2025 ONSC 6432 [McCorkell].
[2] Ibid at para 3.
[3] Ibid at para 5.
[4] Ibid at para 7.
[5] Ibid at para 8.
[6] Ibid at para 9.
[7] Ibid at para 11.
[8] Ibid at para 13.
[9] Ibid at para 23.
[10] Ibid at para 24.
[11] Ibid at paras 29-30.
[12] Ibid.
[13] Ibid at para 31.
[14] Pecore v. Pecore, 2007 SCC 17.
[15] McCorkell, supra note 1 at para 34.
[16] Ibid at para 37.
[17] Ibid.
[18] Ibid.
[19] Ibid at para 41.
[20] Ibid at para 47.
[21] Zimmerman v. McMichael Estate, 2010 ONSC 2947.
[22] McCorkell, supra note 1 at para 52.
[23] Ibid at para 50.
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