Catto v. Catto illustrates some of the myriad of issues that can surround the administration of an estate.

There, the deceased died at the age of 50 without a will. He was survived by his wife of one year, and his mother and a brother.

The mother applied to the court to be appointed as Estate Trustee. The mother also sought an Order that the deceased’s ashes be exhumed, so that one half of the ashes could be buried in a family plot in Quebec, and an order that she be reimbursed for funeral expenses.

The brother sought an order for the inspection of a hockey card collection, so that he could determine which of the hockey cards in the deceased’s possession belonged to him.

Ashes

The deceased’s spouse is alleged to have initially agreed to burial of the deceased’s ashes in the family plot. However, she subsequently obtained the ashes, and buried them in Peterborough.

In deciding what to do with the ashes, the court considered the question of who should be appointed as estate trustee. The estate trustee would be entitled to decide on the location and manner of burial of the ashes.

With respect to the appointment of estate trustee, the court considered the relevant statutes.  The court noted that the surviving spouse was entitled to all of the property of the deceased’s estate on intestacy, and did not have any interest that was adverse to the estate, such as a claim for dependant support or other relief against the estate. Buttressing this, the court noted that the deceased’s mother was a resident  of Quebec, and that s. 5 of the Estates Act prohibits granting letters of administration to a person not residing in Ontario.

As the deceased’s spouse was appointed Estate Trustee, she alone could determine the disposition of the ashes. The mother’s claim for half of the ashes was dismissed.

Funeral Expenses

The deceased’s mother was entitled to be reimbursed for funeral expenses by the estate. The court rejected the argument that the mother had made a gift to the estate of the funeral expenses.  To find a valid gift, the court requires i. an intention to make a gift; ii. acceptance of the gift; and iii. a sufficient act of delivery.  Here, the first and second points were not present. There was no intention on  the part of the mother to make a gift, and prior to appointment by the court, there was no administrator of the estate able to accept the gift.

Hockey Cards

The court reviewed evidence that the deceased and his brother collected hockey cards together for many years. The cards were originally in possession of the brother, but were then moved to the deceased’s residence as the brother was expecting twins and did not have space to store the cards.  There was allegedly a list kept by the deceased as to which cards belonged to whom. However, this list could not be found.

The court ordered that the cards be inspected by the surviving brother. If the list could not be found, then the cards were to be divided between the surviving brother and the deceased’s estate “in a randomized manner”.

Costs

In a separate decision, the court addressed the costs of the parties. The surviving spouse claimed costs of $10,133 plus disbursements and HST. In light of the divided success, and an offer to settle made by the spouse, the mother and brother of the deceased were ordered to pay costs to the surviving spouse of $5,000 plus disbursements and HST.

Takeaway

• Make a will (it is, after all, Make A Will Month);
• if you are holding property for someone else, or if someone else is holding property for you, have clear, shared records.

Have a great weekend.

Paul Trudelle