Unfinished Business: Administration of Estates After a Settlement
Achieving a settlement is a major success in any estates dispute, but even the most comprehensive agreement cannot address every possible post-settlement wrinkle. The recent case of Viau v. Kozicki et al, 2010 ONSC 1682 is an example of how a court will interpret Minutes of Settlement following court approval (required in this case because there were minors).
The main issue in Viau was whether legal fees associated with administration of the estate after a judgment approving the settlement had been granted. The judgment incorporating the settlement stated as follows:
"THIS COURT ORDERS AND ADJUDGES that [the estate trustee], be at liberty to pay all of the debts of the [Estate], which include:
(xiv) Any legitimate debts of the [Estate], upon notification to [named Respondent], or approval of the court."
The court found that the wording of the order was not restrictive and did not establish caps on legal fees. Further solicitor’s work to complete the estate would have been anticipated. Of course, the legitimacy of the work or amount claimed would be subject to approval by the named Respondent or the court. In coming to this conclusion, the court did not look beyond the terms of the judgment. The judgment was clear and unambiguous and there was no need to review pre-settlement correspondence.
The decision illustrates a second principle: litigants should avoid unnecessary (or less efficient) proceedings. Specifically, when the named respondent challenged the legitimacy of the additional legal fees, the estate trustee commenced a passing of accounts proceeding. The court found that the issue concerning the legal fees could have been addressed by motion to the court without a passing of accounts and therefore the costs associated with the passing of accounts were not payable from the estate.
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