Whaley Estate Litigation
 Whaley Estate Litigation Newsletter Vol.2 No. 10 January 2013




Greetings, and welcome to our January Newsletter. From all of us at WEL, we wish you a Happy and Healthy 2013!


Thank you for your continued feedback, comments, enquiries and contributions that you wish to share: 


Whaley Estate Litigation provides litigation, mediation and dispute resolution services to you or your clients in the following practice areas:


  • Will, Estate, Trust Challenges/Interpretations
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Hearings
  • End of Life Decision Making
  • Treatment Decision Disputes
  • Elder Law
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Counsel to Estate Trustee(s) and Estate Trustee(s) During Litigation and other Fiduciaries
  • Section 3 Counsel under the Substitute Decisions Act


Kimberly A. Whaley
Whaley Estate Litigation


1. Heather B. Hogan joined WEL on January 4, 2013 as an Associate Lawyer


WEL warmly welcomes Heather Hogan as an Associate Lawyer.  Heather's practice will focus on the areas of estate, trust, capacity and fiduciary litigation.  Heather obtained her JD at Osgoode. Heather spent the past year working as a lawyer at the Ministry of the Attorney General's Office of the Public Guardian and Trustee. 


Click to visit Heather's profile on our website




2. The Canadian Lawyer Award in the Canadian Lawyer Magazine  


We are thrilled to learn that WEL was rated as 1 of the top 5 Trusts and Estates Boutique Firms in Canada this year by the Canadian Lawyer Magazine. The list:



We are honoured and privileged to join the company of our colleagues, and offer our congratulations to each of them. 


Oh, and one last very important thing, my mother is probably the only person, other than me of course, who even cares and enjoys this news - to her, a big thanks for her lifelong support and belief in me!!


View Canadian Lawyer January 2013 WEL listing reprint


Read Canadian Lawyer January 2013 online





3. Our Publication: "What Next? Navigating Later Life Transitions" 


We would be pleased to provide you with a copy of this book for free, while our supplies last.  If you wish to receive a copy, please contact Kimberly directly. Alternatively, please see the Publication Release for details 



4. Our Blog and Publications Site 


We encourage you to visit our blog and publication site. Our lawyers each post a blog per week on topical estates and trust related issues.  


To receive our blog directly follow our RSS Feed or otherwise visit us on our website at: http://whaleyestatelitigation.com/blog/


If you wish to share newsworthy information on our blog, please contact Kimberly.



Motions to Enforce Settlement


a. Galevski Estate, Re 2012 ONSC 3460 (CanLII)




It seems on my review of cases released by Westlaw that recently there have increasingly been many motions brought to enforce settlement.


It is so important that when negotiating a settlement, lawyers endeavour to be as clear as possible as to the terms and conditions of the settlement proposed or offered and ultimately accepted including all terms and conditions to which the majority of the settlement are subject.


In the Galevski Estate, there is a short reporting of additional reasons by the Honourable Justice Robert B. Reid.


In the Reasons, the residual beneficiary of the Estate is presented as the brother of the estate trustee.  It was the residual beneficiary that brought the motion to determine whether the Court would enforce the settlement which occurred when the estate trustee accepted the beneficiary's offer.


In a decision in June 2012, the Honourable Justice Robert B. Reid determined that the offer did constitute an enforceable settlement.


In that event, the estate trustee was successful in resisting the motion brought by the beneficiary brother.


The cost of such motions are often covered by the very terms of the Minutes of Settlement and releases entered into by the parties.  It appears from the Reasons, although not entirely clear, that the offer presented and accepted, though the agreement may have been subject to entering into suitable Minutes of Settlement and releases, perhaps did not reflect the treatment of costs in such an event, and therefore, or perhaps in any event,  the costs of the motion brought are the subject matter of the additional Reasons.


Justice Reid reviewed the discretion to award costs under Section 131 of the Courts of Justice Act and the factors set out in Rule 57.01(1) of our Rules of Civil Procedure.


Justice Reid considered the first presumption that the successful party receive some portion of its costs from the unsuccessful party.


The estate trustee sought costs on a substantial indemnity basis, curiously not a full indemnity basis, based on his success and also on the fact that the issues were of utmost importance to the estate trustee who sought to uphold a final settlement of the litigation concerning the Estate.


However, the beneficiary argued that the entirety of the proceeding was necessary as a response to the lack of accurate and timely information received from the estate trustee and therefore asked the Court to make an award of costs against the estate trustee as the unsuccessful party, or in the alternative, an Order for no costs.


Justice Reid spoke to the main basis for the beneficiary's motion and that was the unanticipated increasing costs incurred by him after the March 2, 2012 offer to settle made, and prior to its acceptance by the estate trustee.  Additionally, but, to a lesser extent, the motion in Justice Reid's Reasons was prompted by further disclosure of previously unidentified Estate assets by the estate trustee.


Accordingly, the beneficiary's submissions and argument was based on the fact that the actions of the trustee throughout the proceedings tended to lengthen the duration unnecessarily and should therefore be characterized as vexatious.


Justice Reid accepted, in part, that the lack of careful and timely disclosure by the estate trustee following the March 2 offer did indeed play a role in the beneficiary's decision to proceed with the motion, and therefore, there should be some cost consequences to the estate trustee as a result.


Moreover, the beneficiary sought costs from the estate trustee arising from an attendance before McKenzie, J., following an adjournment wherein McKenzie, J. reserved costs of that day to the judge disposing of the matter.


Interestingly, Justice Reid was not inclined to assume jurisdiction over those costs since it was presumed that the ultimate disposition would be after an argument on the merits, rather than about the enforceability of the accepted settlement offer.  An overriding factor to this was also that the accepted offer constituted a final settlement inclusive of costs.


While I agree that the accepted offer would likely have constituted a final settlement inclusive of costs if indeed the terms of the offer proposed and accepted included same, or otherwise did not exclude same. I am unclear however, (and this is perhaps because of the Reasons given, and that not all facts are available to us when reading a decision), as to Justice Reid's comments regarding the assumption of jurisdiction over the costs for reasons which included there was no argument on the merits.  Having been involved in a similar situation, it is unclear as to why there would be no jurisdiction regardless of whether there was argument on the merits to address costs or not.  Often many costs are incurred in resolving the subject matter of a motion or application or Order giving Directions which the parties are then not able to agree upon even though they may agree to the substantive relief and usually as the matter is stood down and about to be heard.  Practically speaking, it is often the case that issues can be resolved and then costs go unresolved because the parties having dug in their heels are then not able to shall we say "stomach" the costs of the negotiations. 


While I am firmly of the view that it would be best for the parties to negotiate their costs and not leave it up to a judge in those circumstances, or indeed any circumstances, if possible, I am however not clear as to why there would be no jurisdiction to determine those costs.  In my view, the Court has full jurisdiction to assist the parties with determining those costs and assess or direct a reference in such cases.


At paragraph 11 of Justice Reid's decision, it is stated:


"Although the trustee has sought substantial indemnity costs, I do not consider that the circumstances of this case warrant that result.  There was no Rule 49 Offer to Settle the motion, nor were there any circumstances that would otherwise justify the punitive consequences of a substantial indemnity award."


This paragraph of these Reasons of the decision are also of concern to me, given that Estate Trustees should in most cases and absent warranting circumstances, be fully indemnified for their legal fees and disbursements out of the trust fund - yet there was no mention of this, nor section 23.1 of the Trustee Act, nor of Geffen v Goodman, 1991 CanLII 69 (SCC).


As a reminder, Section 23.1 of the Trustee Act:


Expenses of trustees


23.1 (1) A trustee who is of the opinion that an expense would be properly incurred in carrying out the trust may,


(a) pay the expense directly from the trust property; or

(b) pay the expense personally and recover a corresponding amount from the trust property.


There seems to be no mention of this Section, nor the case and that principle in the Reasons and it is unknown whether or not it was raised in argument.  However, I do note that the Court was minded to reduce in some way the estate trustee's costs due to lack of careful and timely disclosure.


In the result, Justice Reid determined there would be an award of costs in favour of the estate trustee on a partial indemnity basis and fixed the costs subject to a reduction for late disclosure and time incurred after the settlement had occurred at $9,000 inclusive of HST and disbursements.


b. Carachi Estate v Carachi, 2012 ONSC 4934 (CanLII)




This is another case where the applicant brought a motion to enforce a settlement.


On this motion, the respondents took the position that there was no agreement on the essential terms of the proposed settlement. Notably, the Succeeding Estate Trustees were prepared to go along with any consent by the other respondents or any order of the court in respect of a settlement.


The applicant was the [original] estate trustee named in the Will and the respondents were the sole beneficiaries.  The original estate trustee was relieved of her duties due to ill health and some of the beneficiaries and a trust company were named as succeeding estate trustees of the Estate.


The original estate trustee was required to pass her accounts for the period that she acted and as a result, negotiations began between the parties to settle that passing of accounts matter.


The applicant made an offer to settle on May 9, 2012.  The respondents made an offer to settle shortly thereafter, on May 14, 2012.  It is the subsequent offer by the respondents that was accepted by the applicant on May 18, 2012 and it was that subsequent offer, that the applicant sought to enforce on the motion before the Honourable Justice Miller.


Notably, the May 14 offer was for $65,000.00 in compensation to the applicant with no specified time for the payment of the money and which included a proposal for mutual releases satisfactory to their respective counsel.


There was a May 16th offer made by the applicant for a higher amount that was ultimately rejected by the respondents and it was the May 18th acceptance of the May 14th offer proposing the specific payment that constituted the settlement.


In the intervening period, the proposed payment date was not acceptable to the respondents and there was further correspondence respecting the date for payment of the compensation, as well as the form and scope of the releases which resulted in the exchange of a further different offer.


The respondents take issue only with the timing of the payment of the compensation and the scope of the releases and take the position that those items constituted essential terms on which there was clearly no agreement.


Justice Miller, at paragraph 13, speaks to the clarity of the exchange of the correspondence, of the offer and of the acceptance and stating that it may be accepted that the timing of the payment was not an essential element of the agreement, particularly when there was no timeframe for payment included in the respondents' May 14th offer, however the form and scope of the releases remained an element on which the parties could not agree and in fact it is where the negotiations broke down.  Accordingly, Justice Miller found that the form and scope of the releases were indeed an essential element of the proposed settlement on which the parties did not agree and therefore there was no enforceable agreement.


It is unknown what the disposition of costs were with respect to this motion as yet.


c. Venables v Gordon Estate




On May 2, 2012, the Honourable Mr. Justice Robert Beaudoin provided additional Reasons respecting a prior application and motion before him. 


It was noted that the respondent, as executor and trustee, had been previously removed and that the applicant now sought costs on a full indemnity basis, asserting that they were incurred through the unreasonable and reprehensible conduct of the respondent, and in the alternative, substantial indemnity costs on the basis that she had made a valid Rule 49 offer to settle that was consistent with the relief obtained on the application.  Moreover, it was submitted by the applicant that the respondent should bear the costs personally as the dispute had not arisen out of any ambiguity attributable to the testator.


The application launched by the applicant had resulted in a mediated settlement in which costs were born in the amount of approximately $100,000.00 which the applicant agreed to forego.  However, the respondent did not abide by the terms of the settlement and therefore since he failed to do so, she claimed that she should be entitled to costs of both applications in the approximate amount of $120,000.00 and only in the alternative, that her costs of the second application be paid on a full indemnity basis, which costs could have been avoided if the respondent had fulfilled its duties as trustee pursuant to the mediated agreement reached in the amount of in or about $19,000.00.


In the conclusion, the Court was satisfied that the applicant was entitled to her costs on a full indemnity basis.  It was acknowledged that while the Rule 49 offer was one factor in arriving at the decision, the award of costs was made on the scale as a result of the conduct of the respondent, which the Court concurred was reprehensible within the meaning of the case law.  The Court found that the estate trustee had breached the terms of the mediated agreement and the Court concluded that he had adopted an indifferent attitude towards the agreement and the beneficiaries.


The Court noted that it knew of no decision to support the recovery of costs of a previous proceeding that had been settled and therefore concluded that the full indemnity amount of in or about $19,000.00 was within the reasonable expectation of the respondent and that the respondent was also required to repay the trust fund for all costs paid to his own counsel.


d. Turk v. Turk, 2011 ONSC 6497 (CanLII)




This decision of the Honourable Madam Justice Greer involved an interesting issue as to who among the parties are beneficiaries of two trusts that were settled by Sandra Turk, in that there were two adopted children who were adopted subsequent to the settlement of the two trust instruments.  In the first trust, the Marin Huston Trust, the wording of relevance is set out at paragraph 7 of the judgment of the Honourable Madam Justice Greer as follows:


"The first preamble of this Trust reads:


WHEREAS the Settlor desires to establish a trust to be known as the MARIN HUSTON TRUST, for the benefit of the family of her son JONAH TURK (herein called "Jonah Turk") and their issue as hereinafter provided.


Part I, subparagraph 1.1.4 of the Trust defines "Jonah's Family" as follows:


"Jonah's Family" at any time means those who are alive at that time of Marin Rachel Turk, Gregory Huston Turk and any other children of Jonah Turk born after the date of this Settlement, and the issue of such children.


Subparagraph 1.1.5 speaks to the "time of division" under the Trust. It is the earlier of:


(a) The date which is one day prior to the twenty-first anniversary of the death of the last survivor of those of Jonah's Family who are alive at the date of this Settlement, and


(b) Such date as the Trustees and the Advisor may determine by instrument in writing signed by each of them and delivered in counterparts to every member of Jonah's Family who are alive at the time of the signing of such instrument is alive and has attained the age of majority".


"The meaning of issue is set out at paragraph 8 of the judgment as follows:


The "Meaning of Issue" is defined in paragraph 1.2 as follows:


Any reference in this Settlement to a person in terms of a relationship to another person determined by blood or marriage shall not include a person born outside marriage nor shall it include a person who comes within the description by tracing through another person who has been born outside marriage, provided that:


A. any person who has been legally adopted shall be regarded as having been born inside marriage to his or her adopting parents".


Also relevant is the alternative distribution if there are no members of the family alive at the time of division, which is referenced at paragraph 10 of the judgment as follows:


"Part V, paragraph 5.1, sets out an alternative distribution if there are no members of Jonah's Family alive at the time of division. The Trustees are then directed to divide the trust fund among the issue of the Settlor or such one or more members of them to the exclusion of the other or others and on such terms and conditions as the Advisor in his uncontrolled discretion may any time and from time to time in writing either revocably or irrevocably appoint without in any way infringing any rule against perpetuities".


Notably, there is a provision for the variation of the settlement on terms.


The second trust, the JDH Trust essentially mirrors the terms of the first, in the paragraph set out herein of the first trust, the Marin Huston Trust.


The positions of the parties were as follows:


Jonah's two children from his marriage to Susan, namely Marin and Gregory, are the applicants requesting that the terms of the trusts be interpreted.


The following facts as set out at paragraphs 18 through 24 are relevant to the Court's analysis:


[18] Jonah's two children from his marriage to Susan, namely Marin and Gregory, come before the Court as Applicants to have the terms of the Trusts interpreted. Upon Jonah's remarriage after their parents' divorced, Jonah adopted Bronte and Robert, the two children of his new spouse, Heather. Neither child was an infant nor a young child at the time of the adoption. Bronte was an adult and Robert within a year of attaining the age of majority.


[19] Marin and Gregory are Jonah's natural born children and the only named beneficiaries of the Trusts. The other beneficiaries of the Trusts are unnamed and are said to be "...any other children of Jonah born after the date of this Settlement."


[20] All parties agree that Robert is a beneficiary of the Marin Huston Trust since he was born on October 15, 1992, being a date after that Trust was settled on July 17, 1992. In contrast, Robert was alive after the J.D.H. Trust was settled. Bronte, however, was born on July 26, 1991, before both Trusts were settled.


[21] Marin and Gregory say that only Robert can have an interest in the Marin Huston Trust and that Bronte has no interest in it. They also say that neither Bronte nor Robert has an interest in the J.D.H. Trust.


[22] Jonah, in his personal capacity, says that both Bronte and Robert have interests in each Trust. That position is supported by Norman Turk, in his role as Advisor to the two Trusts.


[23] Jonah, in his capacity as Trustee, presented the facts in the proceeding. The Trustee's legal position is that Bronte and Robert each have an interest in each Trust. Sandra, the Settlor, takes no position.


[24] Bronte and Robert say that they are part of "Jonah's Family" because of their adoption by Jonah. They say that each qualifies to be included among the beneficiaries of the Trusts by implying the words, "or adopted" into the Trust Agreements after the word "born". They say that this makes them part of the "issue" described as beneficiaries in the Agreements".


In the Court's analysis, it looked at not only the wording of the two trust agreements but also the legal effect of the adoption by Jonah of Bronte and Robert to determine whether either or both are beneficiaries of either of the two trusts or not.


There is some interesting analysis that follows given the legal argument and position presented by the parties including the legality of the adoption, and in particular, when the children were deemed to be born for the purposes of the trusts.


I will not go into the legal position and argument of the parties itself, however note that the analysis of those arguments can be found at paragraphs 25 through 37 of the judgment, and of particular note are paragraphs 34 and 35, all of which are reproduced here for ease of reference:


[25] The Court must look at not only the wording of the Trust Agreements, but must examine the legal effect of the adoption of Bronte and Robert by Jonah to determine whether either is or both are beneficiaries of the Trusts or not.


[26] Marin and Gregory, as Applicants, say that the determination of who is a beneficiary under each Trust should be made based on a reading Article 1.1.4 of each of the Trusts. They are Jonah's natural born children and are the only persons named as beneficiaries of each Trust. There is also a class of beneficiaries described as "...any other children of Jonah born after the date of this Settlement and the issue of such children".


[27] All the parties point to the fact that Jonah adopted his new wife's two children on June 21, 2010. Bronte was an adult at that time and Robert was 17 years of age, and a minor at that time. Under paragraph 1.2 of the Trusts, there is a definition of "issue", as used in the Trusts. While it excludes any person born outside marriage, subparagraph A. says that any person who has been legally adopted shall be regarded as having been born inside marriage to his or her adopting parents. All agree that Bronte and Robert were legally adopted by Jonah. The Trusts, however, do not include a provision specifying when an adopted child is said to be "born" within the meaning of the Trusts.


[28] The Child and Family Services Act, R.S.O. 1990, c. C-ll ("the CFS Act") is the Act governing adoption. It was operative when Bronte and Robert were adopted by Jonah. Both were adopted in Ontario pursuant to s. 158(l) of the Act. Subsection 158 (2) (a) says that as of the date of the making of an adoption order, "...the adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child." That child then ceases to be the child of the person who was his or her parent before the adoption order was made, except where the person is the spouse of the adoptive parent.


[29] Since Bronte was an adult when she was adopted, only Bronte had to consent to her adoption. Robert, on the other hand must have had his father's consent to the adoption, if he was alive at that date and given his age, Robert would have had to personally consent to his adoption.


[30] Subsection 158 (4) of the CFS Act makes reference to Wills and other documents as follows:


(4) In any will or other document made at any time before or after the 1st day of November, 1985, and whether the maker of the will or document is alive on that day or not, a reference to a person or group or class of persons described in terms of relationship by blood or marriage to another person shall be deemed to refer to or include, as the case may be, a person who comes within the description as a result of an adoption, unless the contrary is expressed.


Therefore, once Bronte and Robert were adopted, they say they have become Jonah's children and therefore members of Jonah's Family, as defined in the Trusts.


[31] The second issue to be determined is when is an adopted child deemed to be "born" for purposes of the Trusts.


[32] It is the position of Marin and Gregory that the issue in dispute is whether the language used in the Trusts, defining who is a beneficiary, should be interpreted according to its natural meaning. In looking at the issue, they say the issue is whether:


(a) an unnatural meaning should be given to the relevant words in Article 1.1.4 (the word "born" in the clause "born after the date of this Settlement"), so that "born" is interpreted to reference a child's date of adoption rather than birth; or


(b) words should be implied into Article 1.1.4, so that the language "born after the date of this Settlement" is interpreted to mean "born or adopted after the date of this Settlement." (emphasis added)


They say that there is no basis for either taking an unnatural meaning of the word "born" or implying the words "or adopted" into Article 1.1.4 of the Trusts. They say that the words should be given their natural meaning, and that members of "Jonah's Family" as defined in the Trusts could only mean those persons who are "born" after the date of the Settlement. Such a meaning would therefore include Robert as a beneficiary of the Marin Huston Trust since he was born after it was settled. It would disqualify Robert from being a beneficiary of the J.D.H. Trust and would disqualify Bronte from being a beneficiary of either Trust.


[33] This meaning does not exclude Marin and Gregory, since they are named beneficiaries of the Trust, being the only natural born children of Jonah named in the Trusts and who were alive on the dates both Trusts were settled. Robert was born before one Trust was settled and after the second one was settled.


[34] They say there is no basis in the Trusts, the Ontario legislation or the facts before this Court to adopt an unnatural meaning of the word "born", as it is used in the Trusts.


[35] The Trustee says that an adopted child of Jonah should be treated the same way as his natural born children are treated under the Trusts. He says that the adoption date of Bronte and Robert should be considered the date they are born to Jonah. He says that s. 158(2) of the CFS Act stating that for all purposes of law, as of the date of the making of the adoption order, the adopted child become the child of the adoptive parent and that this date should be now considered the date of the birth of the child and not his or her actual birth date as shown on his or her birth certificate.


[36] Bronte and Robert point to Section 146 of the CFS Act, which says that an adoption Order is final and irrevocable and should not be questioned or reviewed in any way by the Court by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, habeas corpus or application for judicial review.


[37] They also say that the Trusts do not express an intention to exclude adopted children. They say that once the child is placed up for adoption by his or her natural parents, when the adoption takes place, that child is considered the child of the marriage of the adoptive parents. While this is true, neither Bronte nor Robert were "placed up for adoption". Bronte was an adult, as noted earlier in these reasons, and given Robert's age when he was adopted at 17 years of age. This is not the case where a child in infancy is adopted by adoptive parents".


Justice Greer, in her own analysis, determined and on agreement of the parties that there is no Canadian case law on all points that are in issue in the interpretation of these trusts.  At paragraph 40 of her judgment, Justice Greer states "I cannot see where any of these propositions apply to the wording of the Trusts. [referring to Feeney's].  The clause in the Trust is worded, "...and any other children of Jonah Turk born after the date of this Settlement, and the issue of such children". There is nothing in this clause that is ambiguous or capable of two constructions. The words "born after" mean exactly what they say."


Importantly, at paragraph 41, Justice Greer finds that the settlor's intention is clearly expressed and the words "born after" cannot have any other meaning than their natural meaning.  Justice Greer concedes that while it may be inequitable for Bronte, who is now Jonah's adopted child, not to be a beneficiary under either trust, and Robert only the beneficiary of one trust, their adoptive status is not changed by any legislation to take away the fact that their real birthdates, for Bronte is before both trusts were settled, and Robert's before one trust was settled.  Justice Greer also concedes that Marin and Gregory, on the other hand, could say that it would be inequitable to them and their unborn and unascertained issue, if the wording of the Trusts was to be interpreted in such a manner as to add a whole new class of persons as beneficiaries to the Trusts who were born before the Settlement dates.


At paragraph 44, Justice Greer goes on to state that the construction of the words of the Trusts is neither unjust, nor absurd, nor does the rule against disinheritance apply as referenced in Feeney.


The analysis at paragraphs 46 through 49 is also interesting though it does not change Justice Greer's decision with respect to the issues raised.


In the conclusion therefore, and pursuant to the legislation, Justice Greer found that Bronte's and Robert's birth dates remain the same on their new birth certificates issued after adoption, as in their original birth certificates before they were adopted. It is noted that the Children's Lawyer, a named party, took no position on the matter, and did not appear on the application.  Justice Greer in the end found that the wording of the Trust was clear and unambiguous resulting in Bronte being found not to have a beneficial interest in either Trusts and Robert only having a beneficial interest in one Trust, and that a declaration to that effect shall issue accordingly. 


There was no disposition with respect to the costs of the motion.


e. Lagani v Lagani Estate, 2012 ONSC 2614 (CanLII)




This case involved the question of the validity of an agreement made prior to the death of the mother of the various applicants and respondents, M. Lagani, concerning the ultimate provisions of her Will. 


A motion was brought for an Order Giving Directions to set out triable issues as well as a motion to force the sale of real property. Two of the parties continued to reside in the real property of the estate without payment of rent to the estate, and further disclosure orders were sought.


Maria had five children. In her Will, she left her children as the residuary beneficiaries of her estate, but also provided for specific bequests for four of her five children, and the fifth was only to receive a residual bequest.


The testator in her later years required increasing assistance with her care after her husband predeceased her. One of her children agreed to provide that assistance, but on the basis that she could purchase the real property in which she lived with her mother at the same cost that her mother originally paid for the home, which represented a significant benefit since the home had significantly increased in value.


This agreement was made and was reflected in a written Acknowledgement and Agreement drafted by the estate solicitor, and reflected the terms of the arrangement which had the effect of reducing each beneficiary's share of the estate to enable the one child to purchase the real property from the estate in accordance with the agreement reached with the testator mother.


One child, Tony, took issue after death with the Agreement, and said that he only signed the last page, and had not seen the whole Agreement when he signed it. It was also noted by Tony as a significant factor, that neither of the estate trustees signed the Agreement although the other beneficiaries of the estate did.


Notably, there were cross-examinations, and though the court suggested that it would be best to have viva voce evidence, both counsel indicated on the record that the parties wished the issue of the Agreement be dealt with summarily and accordingly asked the court to make findings of credibility based on the affidavits and transcripts filed. The argument of the motion proceeded on that basis as agreed upon by all counsel and parties.


In the resolve, the court found that the Agreement made was both valid and binding on the parties and as such, the estate. The court further found that the applicant's motion to sell the real property and for disclosure would be dismissed for reasons set out in the analysis of the court. The analysis is set out commencing at paragraph 38 of the judgment, which sets out the issues raised on the motion first, as follows:


[38]There were several issues raised by the motions filed in this matter which are as follows:


(a) Is the Agreement binding on the Applicant?


(b) Should the Estate Trustees be compelled to sell the property located at 40 Palmer Avenue, Richmond Hill, Ontario?


(c) Should the Estate Trustees be compelled to produce a list of the assets of the estate as required under the order of Sosna J. dated May 12, 2011?


The gist of the issues is found mainly at paras 40-47.  Of particular interest is the agreement reached to address the validity of the agreement pursuant to Rule 21 with certain features adopted from Rule 20 and without oral evidence, father on affidavit evidence alone. 


Is the Agreement binding on the Applicant?


[40]      There are several different determinations to be dealt with under this heading. Firstly, there are factual issues raised by the Applicant; he states that there were misrepresentations made by Rosa and Mike, and initially he said that he did not properly sign the agreement. He states that he changed his mind about the sale of the property to Rosa only when he discovered the terms of the Applicant's will. He says that there was never a discussion about the arrangement to transfer 40 Palmer Avenue to Rosa at a reduced cost, and he knew nothing about that arrangement other than the fact that he was told that it was in his mother's will. Tony's evidence is in conflict with that of Margaret and Mike, and I have to make findings of fact considering the significantly different versions of events provided by the parties.


[41]      As well, Tony raises legal issues. He notes that the Agreement states that it was subject to obtaining independent legal advice and as such, he did not understand what he was signing, and the agreement was subject to being set aside once that advice was obtained. Moreover, he notes that the Agreement was not signed by all parties prior to his withdrawal from the arrangement; he states that the Agreement is accordingly not binding upon him because it had to be signed by all parties to become effective. He also states that the agreement is not binding on him because of the misrepresentations made to him by Mike when he signed the Agreement on August 2, 2010.




[42]      The estate seeks to enforce the Agreement; Margaret states that the agreement by the estate to sell 40 Palmer Avenue to Rosa was presented to the parties at a meeting of all of the parties who approved and agreed to the arrangement reflected in the Agreement. After this meeting, copies for execution were prepared and left at Rosa's for execution. According to Margaret, the terms of that arrangement was agreed to at the beneficiaries' meeting held between the parties and this Agreement was reflected in the document Tony signed on August 2, 2010. Margaret states that Tony has now changed his mind, and should not be permitted to do so.


[43]      Tony's initial evidence in this motion was that he did not sign the agreement in question. He states that he signed a blank signing page which was not attached to anything, and that all that he was provided was the proposed distribution of the estate found on p. 3 of the agreement. He states that there was never a prior agreement or stated intention of Maria that Rosa could purchase 40 Palmer Avenue from the estate at the original purchase price paid by Maria. He denies that there was ever any discussion of an arrangement to transfer to the property to Rosa at the original price paid by Maria and says that it was never discussed with him. He states that when he attended at Rosa's residence, he was presented with a blank signing page and a statement of the proposed distribution of the estate; it was his evidence that he was told that this, as well as the arrangement respecting the purchase of the property, was set out in his mother's will. He says that there were no other terms of the agreement provided to him, and that he never saw them until they were filed in court. He finally states that when he finally saw the will, he realized that he had had the facts misrepresented to him by Rosa and/or Mike, and at that time he repudiated the arrangement that he had signed on to; he now disputes the validity of both the 2006 and 2009 wills.


[44]      As noted above, and presumably due to the report of the forensic document examiner, Tony's solicitor acknowledged in argument that Tony did, in fact, sign the entire agreement; he presumably still says that he was told that the Agreement reflected the terms of his mother's will and as such, there is a material misrepresentation which vitiates the Agreement.


[45]      The motion in respect of the validity of the Agreement purports to be brought under Rule 21 of the Rules of Civil Procedure[1](determination of a legal issue before trial). However, as noted above, I am not being asked to only decide on a legal issue; there are disputed issues of fact before me and to properly determine the matter, I need make credibility determinations and weigh evidence arising from the vastly different stories told by each of the parties. Moreover, the within motion is brought pursuant to para. 2 of the order of Sosna J. dated May 12, 2011, which required the issue of the validity of the agreement to be "tried separately from the other issues" raised by the Notice of Objection filed by Tony. As we are effectively dealing with the trial of an issue through argument of a motion, I presume accordingly that the jurisdiction for this motion is pursuant to Rule 20.04(2)(b) which allows a part or all of a claim to be determined summarily where the parties so agree:


(2) The court shall grant summary judgment if,


(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.


[46]  As noted above, both counsel agreed that I would have to make determinations as to the credibility of the parties; it was apparent to me that there were substantial differences in the evidence given by the parties in respect of the negotiation and execution of the agreement. No agreed statement of facts was filed. Accordingly, as with a motion brought under Rule 20.04(2)(a), I may weigh evidence, determine credibility and draw inferences from the evidence; although Rule 20.04(2.1) is not applicable to a motion under Rule 20.04(2)(b), those powers are implicit through the agreement of counsel to determine the validity of the Agreement when there are vastly different stories being told by each side to the motion.


[47]      Unfortunately, I am forced to determine that Tony's evidence as provided in his affidavit, and on cross examination is without credibility. His evidence is replete with inconsistencies and apparent untruths. He makes a number of assertions in cross examinations which were disproven by credible written evidence or compelling forensic evidence. He withdrew his position that he had not seen the agreement only in the face of overwhelming forensic evidence and when he saw that there was little choice but to do so. As such, much of his evidence is disproven in its entirety; Tony's remaining evidence and the truthfulness of any remaining evidence is called into question by the fact that he clearly gave untrustworthy evidence regarding a number of issues surrounding this motion."


The court goes on to cite several examples of where the court found the evidence of Tony not to be credible. 


Notably, at paragraph 52, the issue of Section 13 of the Ontario Evidence Act was raised and it was noted that Tony's evidence was not corroborated in accordance with the provisions of Section 13:


Actions by or against heirs, etc.


13. In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence


Moreover, at paragraph 54, the Reasons cited by the Court are notable as follows:


In making my determinations as to the facts of this matter, I am going to discount Mike's evidence, and in particular his evidence regarding the events surrounding the signing of the Agreement due to his interest in the result of this motion. I am accordingly making the findings of fact herein based largely upon the competing evidence of Margaret and Tony. Based upon my assessment that I prefer Margaret's evidence over that of Tony, and for the purposes of this motion, I am prepared to make the following findings of fact:


(a) Tony is a sophisticated businessman, and has signed numerous contracts in the course of his business affairs, often without obtaining legal advice.


(b) The Agreement was drafted pursuant to an arrangement which pre-dated the death of Maria wherein she had expressed her wish to have the property at 40 Palmer Avenue, Richmond Hill, Ontario, to Rosa for the original purchase price paid by her; that promise was in exchange for care giving provided to her for the ten years prior to Maria's death.


(c) Prior to Maria's death, all of the beneficiaries, including Tony, were well aware of her intention that the 40 Palmer Avenue property be so transferred to Rosa.


(d) After Maria's death, the executors had the estate solicitors draft an agreement reflecting this arrangement and enabling Rosa to purchase 40 Palmer Avenue from the estate. All of the beneficiaries including Tony met to discuss the terms of the Agreement and came to an oral agreement as to the terms of the Agreement.


(e) The terms of the Agreement including the distribution of the estate assets as set out on p. 3 of the Agreement reflected the consensus arrived at between the beneficiaries at that meeting.


(f) Tony signed the Agreement and when he signed it all of the pages were attached to the signing pages of the agreement.


(g) There was a $75,000 loan from Maria to Tony which remained outstanding on the date of her death and that loan was reflected in the terms of her will and in the distribution of estate funds as set out in the Agreement, which Tony was aware of at the time he signed the Agreement.


The legal issues are addressed at paragraphs 56 onwards. The Court reviews the essential elements of an agreement at paragraphs 61 through 63 including what is required to create a legally binding agreement. 


Interestingly, at paragraph 64, the Court states that the issue is not dealing with the settlement of a claim, though it might be seen as a settlement considering the fact that there is a contemplated action in quantum meruit should the agreement not be upheld.  The Court found that it was apparent that the parties intended that the agreement be binding.


The essence of the Court's decision is found at paragraphs 75 through 91, reproduced below:


[75]       In this case, I do not find that the agreement was conditional upon the Applicant obtaining independent legal advice as set out in the agreement. It is apparent to me from a reading of the entire clause that it is meant to protect the estate as well as the estate solicitors; in the first clause of the paragraph requiring independent legal advice, the Agreement states that the agreement is prepared by Gray & Associates based upon instructions received from the estate. The clause is intended to make it clear that Gray & Associates is not acting for any other party and did not provide advice to the other parties to the agreement. The agreement imposes an obligation on the beneficiaries to obtain independent legal advice prior to execution; they did not. Tony cannot rely upon his failure to comply with this provision to now repudiate the agreement.


[76]       Moreover, Tony has not demonstrated where independent legal advice may have made a difference to him in this matter. He is a sophisticated businessman. He has signed numerous contracts and his cross examination makes it apparent that he knew when it was necessary to obtain advice about an agreement from his lawyer and when it was not. Based upon his evidence, it is difficult to understand what he did or did not understand, as he denied throughout, until the receipt of the forensic evidence, that he even saw the agreement until filed in these proceedings. However, he never states that he did not understand the nature of the agreement; he says that he eventually repudiated the agreement because he discovered that the will did not set out the arrangement for the purchase of 40 Palmer Avenue by Rosa. It is difficult for him to confirm his understanding of the agreement when it was signed insofar as he denied until argument of the motion having had it in hand when he signed it on August 2, 2010.


[77]       Tony's claim in non est factum arises from the fact that he states that he did not have the agreement in hand when he signed it; were he even to rely upon that doctrine, he, as a sophisticated businessman, would have a difficult time in making this out: see Adera Financial Corp. Ltd. v. Pan Asia Investment Inc. (1984) B.C.L.R. 50 (C.A.) as quoted in Van Der Ros v. Van Der Ros 2003 BCCA 270 (CanLII), (2003), 12 B.C.L.R. (4th) 307 (C.A.) at para. 10:


...the principle of non est factum could only rarely be established by a person of full capacity, and although it is not confined to the blind and illiterate, any extension of the ... [scope] of the plea must be kept within narrow limits; and in particular it is unlikely that the plea would be available to a person who signed a document without informing himself of ... [the] meaning.


[78]       It is apparent from this quote that the plea of non est factum is not generally available to a sophisticated businessman who did not read the agreement when presented to him. Tony, if he chose not to read the agreement (and again, this is unclear as Tony gave no evidence in this regard as he did not admit in the materials to having the Agreement in hand when he signed it) would not have recourse to an argument that he did not understand the agreement as he had a duty to inform himself of the contents of the Agreement. He had also signed numerous agreements in the past and knew that any signed agreement would have the potential of affecting his legal rights.


[79]       Mr. Trudelle states, however, that the reason he did not read the Agreement was because misrepresentations were made by Mike at the time Tony signed the Agreement. He notes that an agreement may be set aside where signed based upon a material misrepresentation: see Petro-Quip International Inc. v. Kala Naft Canada Ltd., 2006 CanLII 19497 (ON SC), 2006 CanLII 19497 (Ont. S.C.J.). Tony stated in his affidavit that he signed the documentation because he was told by Mike that the will provided for the transfer of the 40 Palmer Avenue property to Rosa and as such, he did not feel the need to inquire further into what he was signing. He stated in examinations that "I trusted my sister completely" and he stated that her statement that the purchase arrangement was in the will mislead him into signing the Agreement.


[80]      I firstly again have serious concerns about the inconsistencies in the evidence as given by Tony. He states that he trusts his sister "completely" but earlier in the examination, he refers to the fact that the same sister had "screwed" his mother through the care giving arrangement. He also states earlier in his cross examination at Q. 265 that his sister was not present when he signed the Agreement; she could hardly have represented something about the will to Tony when he signed the Agreement when his evidence was that she was not then present.


[81]      However, even if telling the truth, the fact that he trusted Rosa does not excuse him from his duty to read the agreement and understand to the best of his ability what he is signing. As stated in Toronto-Dominion Bank v. San-Ric Developments Ltd. 1987 CanLII 2701 (BC SC), (1987), 11 B.C.L.R. (2d) 260 (S.C.) respecting a husband and wife relationship as cited in Van Der Ros, supraagain at para. 10,


I do not consider that in this day and age, a woman of adult years and understanding who is literate, can avoid the consequences of her executing an instrument by saying "I relied completely on my husband. Such reliance is not careless."


[82]       In my view the same dictum would apply to a close family relationship such as his relationship with his sister as described by Tony; if Tony is to sign an agreement which may affect his legal rights, he is not excused from reading it or taking due care in satisfying himself as to its contents because of his special relationship with his sister.


[83]       Moreover, I have also made a finding that the terms of the Agreement had been discussed and agreed to at the previous family meeting as set out in the affidavit of Margaret. Based upon this finding, no misrepresentation could have been made which vitiated the Agreement as I have determined that the issue had been discussed and agreed to between the parties prior to the copies being presented to Tony for execution.


[84]       As such, I find that the Agreement is valid and binding in this matter, and a declaration will go as requested in para. 1 of the Respondent's Notice of Motion.


Should the Estate Trustees be compelled to sell the property located at 40 Palmer Avenue, Richmond Hill, Ontario?


[85]       The answer to this question is obviated by my determination as to the validity of the Agreement. As a valid agreement is in place requiring the estate to convey the 40 Palmer Avenue property to Rosa, a sale of the property would be contrary to that Agreement and should not be ordered.


[86]       Even if the Agreement was found to be void or voidable based upon the arguments of Tony, there would clearly be further litigation brought by Rosa in quantum meruit for the care she provided her mother for the past ten years. As such a sale of the property would be inappropriate in any event as it would pre-determine the results of that litigation.


[87]       The Applicant's motion for the sale of the property is dismissed.


Should the Estate Trustees be compelled to produce a list of the assets of the estate as required under the order of Sosna J. dated May 12, 2011?


[88]      As noted above, on May 12, 2011, on consent, Sosna J. made an order for directions in the conduct of the estate litigation commenced by the Applicant to set aside the wills of Maria made in 2006 and 2009. Paragraph 9 of that order provided that a written statement as to estate assets on the date of Maria's death and verified by affidavit would be provided by the estate to the solicitor for Tony within 45 days. Tony states that his lawyer wrote to Mr. D'Ambrosio on September 15, 2011 requesting compliance with para. 9 of the order of Sosna J. by "provision of a written statement verified by sworn affidavit setting out all of the assets owned by the deceased at the time of her death." The affidavit of Tony sworn October 19, 2011 states that at the time of the swearing of that affidavit, para. 9 of the order remained in default.


[89]       Margaret failed to address this issue in her affidavit sworn October 26, 2011. She did, however, speak to it during her cross examinations in this matter. She states that she thought that she had provided an estate inventory but she was not sure at that time whether she had. She gave an undertaking to advise as to her compliance with this paragraph. Neither party provided the results of that undertaking at the argument of the motion. Although Mr. Trudelle acknowledged receiving an affidavit from Margaret dated February 1, 2012, he stated that it was deficient and that he required a further and better affidavit. No evidence was tendered as to exactly what was provided and where the deficiencies lay.


[90]      My difficulty with the Applicant's motion for disclosure is that his request is for me to repeat para. 9 of the order of Sosna J. If I order the inventory and affidavit to be served forthwith, I am only going to be ordering what was already ordered and which order, if the inventory is not yet produced, is now in default. An order of the nature requested does nothing other than "gild the lily" and serves no useful purpose. The Applicant has his remedies under the Rules and in contempt in the event of a breach of an interim order and he has not requested any of these remedies. The motion of the Applicant for a further order that the material be provided forthwith is dismissed without prejudice to request remedies resulting from any default in para. 9 of the Sosna J. order, if any.




[91]       Accordingly, there shall be an order to go in accordance with para. 1 of the Respondents' Notice of Motion. The Applicant's motion for sale of the property and production is dismissed without prejudice to request default remedies as appropriate should the production order remain in default.



CBA New Brunswick Conference
February 8-9, 2013
Powers of Attorney; and Predatory Marriages
Speaker: Kimberly Whaley and JaŽl Marques de Souza, Financial Abuse and Misuse of Authority Pursuant to Powers of Attorney; and Predatory Marriages

Info:  http://www.nb-cba.org/Events.aspx


OSGOODE Professional Development - Advising the Elderly Program
February 12, 2013
Remarriages and Common Law Arrangements: Estate Claims by Spouses
Osgoode Professional Development Centre
Speaker: Kimberly Whaley
Info: http://www.osgoodepd.ca/cle/2012-2013Fiscal/2012_elder_law/index.html

STEP (Society of Trust and Estate Practitioners) Program
February 13, 2013
US Tax Issues with Life Insurance Policies
Osgoode Hall Law School, The Donald Lamont Centre
Info: http://www.step.ca/programs.asp?b=Toronto

CBA Elder Law Section Program, Toronto
Substitute Decision-Making and Elder Law (National Elder Law Section)
April 15-16, 2013
Chair: Kimberly Whaley
STEP (Society of Trust and Estate Practitioners) Program
April 16, 2013
RCA's, IPP's and Health and Wealth Trusts
Osgoode Hall Law School, The Donald Lamont Centre 
LSUC Practice Gems Series
April 24, 2013
Passing of Accounts: The recommended Best Practices for Passing of Accounts
Speaker: Kimberly Whaley
Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE13-0041101

LSUC Six-Minute Lawyer
April 24, 2013
Emerging Elder Law Issues
Speaker: Kimberly Whaley
Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE13-0041101

LSUC Six-Minute Lawyer
April 24, 2013
Digital Assets
Speaker: Benjamin D. Arkin
Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE13-0041101 
CCLA Solicitors Conference Montebello
May 3-4, 2013
Speaker: Kimberly Whaley
STEP (Society of Trust and Estate Practitioners) Program
May 8, 2013
Make Your Golden Years Golden...Planning For and Advising on Personal Care Powers of Attorney and Advance Directives
Osgoode Hall Law School, The Donald Lamont Centre
Chair: Kimberly Whaley
Speaker: Mark Handelman 
Carswell Webcast with Kimberly Whaley and Albert Oosterhoff
June 2013 - Details TBC
Predatory Marriages


CBA, National Conference, Saskatoon, Saskatchewan
August 2012
Speaker: Kimberly Whaley, Roundtable discussion

LSCU, The Administration of Estates 2013
September 19, 2013
Chair, Kimberly Whaley 

Speakers: Mary MacGregor; Howard Black; Archie Rabinowitz and David Lobl; Gwen Benjamin; Jordan Atin; Clare Burns and Jasmine Sweatman  

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10 Alcorn Avenue, 

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Toronto, ON, M4V 3A9
Tel: (416) 925-7400 
Fax: (416) 925-7464

Kimberly A. Whaley
C.S., TEP.
(416) 355-3250
Mark Handelman
Firm Counsel
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Ameena Sultan
(416) 355-3258


Benjamin D. Arkin
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JaŽl Marques de Souza


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Heather B. Hogan
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Whaley Estate Litigation