In a recent court decision, the Honourable Justice Stinson considered a motion from competing family members for the appointment of an estate trustee during litigation.
In Buswa v. Canzoneri, the Deceased died without a Will on September 29, 2010. The Deceased did not have a spouse and was survived by seven siblings, and two children.
The concern in this case was that the Deceased did not leave anyone with legal authority or responsibility to arrange his funeral and dispose of his remains.
Two of the Deceased’s siblings, the Applicants, applied for a Certificate of Appointment of Estate Trustee Without a Will. The daughter of the Deceased, the Respondent, also applied for a Certificate of Appointment of Estate Trustee Without a Will.
In his decision, the Honourable Justice Stinson considered the legal interpretation of section 29 of the Estates Act, which reads as follows:
1) Subject to subsection (3), where a person dies intestate … administration of the property of the deceased may be committed by the Superior Court of Justice to:
a) the person to whom the deceased was married immediately before the death of the deceased or person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death;
b) the next of kin of the deceased;
As the Deceased did not have a spouse, the court considered the definition of “next of kin.” In the Black’s Law Dictionary, “next of kin” is defined as “the person’s nearest of kindred to the decedent, that is, those who are most nearly related by blood.”
Applying these concepts, the court held that the Respondent daughter was related to the Deceased by blood in the first degree, whereas the Applicants siblings were related to the Deceased in the second degree. Accordingly, the Respondent daughter was appointed as the Estate Trustee During Litigation.
Thank you for reading, and have a great day.
Rick Bickhram – Click here for more information on Rick Bickhram.
Compensation is a factor in every estates file. The Divisional Court recently confirmed in Church v. Gerlach (2009) Court File No.: DC-07-0038-00 (Div.Ct.) that compensation for an estate trustee during litigation ("ETDL") is determined by the same principles as compensation for executors generally. Compensation for an ETDL is not determined by applying a solicitor’s hourly rate to the time spent.
In Church v. Gerlach, the ETDL was appealing the trial judge’s fixing of compensation at $13,000 inclusive of GST. The ETDL asked for $23,203,54 plus costs. The ETDL had originally claimed $35,805.30 plus $2,973.30 for the costs of the application.
The general provision authorizing compensation to ETDLs is s. 28 of the Estates Act: the ETDL "shall receive out of the property of the deceased such reasonable compensation as the court considers proper". Section 61 of the Trustees Act authorizes "such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice."
According to Ontario’s Court of Appeal in Liang Estate v. Hines (1998) CanLII 6867 (ON C.A.), 41 O.R. (3d) 571, the proper approach is to start by applying percentages to the estate (customarily 2.5% of capital receipts and disbursements, 2.5% of income receipts and disbursements, and an annual care and management fee of 0.4% of gross value of the estate). Then, each percentage is considered against five factors enumerated in Re Toronto General Trusts Corporation and Central Ontario Railway (1905), 6 O.W.N. 350 (H.C.):
1. the magnitude of the trust;
2. the care and responsibility springing therefrom;
3. the time occupied in performing its duties;
4. the skill and ability diplayed; and
5. the success which has attended its administration.
Applying this approach, the ETDL was awarded half of the usual percentages: he ought not to be fully compensated as if he was required to perform all of the functions of an Estate Trustee, and the reduction also took into account the complexity of the estate.
As a general practice note on costs of appeals, while the ETDL had paid his lawyer more than $15,000 to prepare the appeal, given the amount in dispute, the relatively simple issues on appeal and the reasonable expectation of the appellant ETDL, costs were fixed at $5,000 all-inclusive.
The Divisional Court also noted that the standard of review for appeals under s. 10 of the Estates Act on a question of law is correctness.
Have a great day,
An Estate Trustee During Litigation (“ETDL”) is typically seen as an officer of the court who represents the Deceased. An ETDL has a wide variety of duties, which fundamentally includes administering assets, and paying the outstanding debts of the Deceased. The purpose of today’s blog is to consider two Ontario decisions where an application seeking the appointment of an ETDL was rejected and granted, respectively.
Re Lloyd, 24 O.R. (2d) 340, is a 1979 decision by the Ontario Surrogate Court, as it was called. In this case, the widow of the deceased filed a Notice of Objection challenging the Last Will and Testament of the deceased and sought the appointment of an ETDL. On the motion, the evidence indicated that the Applicant was unhappy because she was not being kept aware of the status of the assets, but there were no allegations expressing a concern about the preservation of estate assets or that an ETDL was necessary to prevent waste or mismanagement. In fact, the evidence indicated that the assets of the estate were well managed, and increasing in value. Accordingly, the Honourable Justice Clements refused the appointment of the ETDL.
Re Groner Estate, 1994 CarswellOnt 2478, is a decision by the Ontario Superior Court of Justice. In this case, the Applicant filed a Notice of Objection challenging the Last Will and Testament of the Deceased and also sought the appointment of an ETDL. The Applicant was concerned that the named estate trustee had been administering the estate, despite no legal authority to do so. The named estate trustee opposed the appointment of an ETDL. The Honourable Justice Greer held that the size of the estate was large, however the administration of the estate was uncomplicated. Nevertheless, Justice Greer, expressed concern over the conflict in having the named estate trustee’s lawyers acting as de facto administrator. Justice Greer held that assets cannot be administered in a vacuum and that the perception of neutrality must be seen.
From an evidentiary point of view, both cases provide insight into what Lawyers should consider when drafting materials seeking the appointment of an ETDL.
Thank you for reading, and have a great day.