Toronto Area Estate Administration Dispute Lawyer
When someone you love passes away and a dispute arises in the administration of his or her estate, it is important that you resolve the dispute quickly, efficiently, and cost-effectively. Since family members are often involved, estate disputes can be emotionally charged and highly contested. I understand the high stakes that are involved in estate litigation, and I have a track record of helping my clients to resolve these disputes.
Estate administration disputes can be the result of a variety of disagreements or conflicts, such as the following:
- Last Will and Testament Interpretation. The wording of a Last Will and Testament is not always clear and this can lead to disagreements over who should inherit.
- Transfers of money and/or joint accounts. After the death of a loved one, executor or beneficiaries may discover that before the loved one died, he or she transferred a lot of money to someone or that he or she had a joint bank account with someone. The executor or beneficiaries may want to recover that money. (Note: In Ontario, executors are often referred to as “estate trustees”.)
- Executor’s Compensation. The executor of an estate is typically entitled to compensation, but how much compensation they should receive oftentimes gives rise to uncertainty and conflict.
- Executor’s Performance. Executors are required to administer an estate in a timely and prudent manner and in accordance with the law. In some instances, executors and beneficiaries may disagree over how an estate is being or was administered. As an example, an executor may not have taken the steps needed to maximize the value of an estate asset.
- Multiple Last Wills and Testaments. A testator may have had multiple Last Will and Testaments upon their death, as sometimes they drafted Last Wills and Testaments in different jurisdictions or countries. Disputes can arise because it can be difficult to determine which Last Wills and Testament is valid and should be followed.
HOW I CAN HELP
If you have an estate dispute, you should contact me right away to discuss your situation. During this discussion, I will ask you for an overview of the situation and give you my preliminary analysis. If you want to proceed to meet with me, we can schedule an appointment. At our first meeting, we will go over the following in detail:
- The Last Will and Testament.
- Any relevant documentation that you can provide.
- The applicable Ontario law.
At the conclusion of the meeting, I will advise you of your rights and responsibilities and will discuss any of the options that may be available. With me, you can expect dedicated and aggressive representation.
I have dealt with many estate administration disputes. In one recent case, a reasonable settlement could not be achieved, and so the matter proceeded to court. The trial decision is below. (All of the names and other identifying information has been changed.)
Holloway v. Briar
1 This is an action commenced by the plaintiff in her capacity as administrator with the will annexed of the Estate of Ted Holloway for a declaration that the defendant holds the proceedings of a $390,000 bank draft on a resulting trust for the deceased, Ted Holloway, and his Estate and for the additional relief set out in the prayer for relief of the statement of claim.
2 The plaintiff’s case in chief consisted of portions of the discovery of the defendant being read into the record; the reading of the entire transcript of the evidence of one Clive Garrett pursuant to the provisions of rule 36 of the Rules of Practice and the filing of various exhibits. The defence called a number of witnesses and witnesses were called by the plaintiff in reply.
3 The rule 36 evidence was obtained on consent and the transcript was admitted accordingly.
4 The evidence establishes that Mr. Holloway died on July 13, 2007, leaving a holograph will which was subsequently admitted to probate in the form of a “Certificate of Appointment of Estate Trustee with a Will”. Stephanie Briar (the deceased’s daughter) was named Estate trustee.
5 The deceased was born in November 1924 and was 82 years of age at his death. At all relevant times Mr. Holloway was of sound mind. There is no issue or evidence in this case of undue influence or coercion.
6 The plaintiff’s evidence established that Mrs. Rodwell, the defendant, was 65 years of age as of November 2007. She retired in April May of that year from the Bank of Montreal. She was not related in any way to the deceased Mr. Holloway. She was originally from Scotland as was Mr. Holloway.
7 Mrs. Rodwell first encountered Mr. Holloway in 2003 in her capacity as an employee of the Bank of Montreal when she fielded a telephone call from him during which he asked her to deal with a complaint. Mrs. Rodwell dealt with the complaint over a period of time and had a number of telephone calls with Mr. Holloway.
8 The evidence establishes, and I hold, that a friendship arose between Mrs. Rodwell and Mr. Holloway. The shared a Scottish background of the two stimulated the friendship between them.
9 Mr. Holloway had separated from his wife in 1971, many years before, and had had an ongoing but sporadic relationship with his two daughters. Stephanie Briar indicated in her evidence that she had been estranged from her father since about the end of 2003 until shortly before his death. Tamara Culbert, the younger daughter, had an ongoing relationship with her father up to his death.
10 Mr. Holloway had made available to each of his daughters prior to the end of 2003, the sum of $200,000, upon which monies each daughter paid interest. I accept the evidence of both daughters that their father could have asked for the monies back at any time. Each of the $200,000 transactions was a loan. This is bolstered by the fact that in his last will and testament dated April 4, 2006, Mr. Burns stated, inter alia, “They are also allowed to keep the $200,000 given each of them in previous years”.
11 On June 15, 2005, Mr. Holloway gratuitously delivered to Mrs. Rodwell the sum of $390,000.
12 The issue in this case is what was the legal effect of the inter vivos conveyance by Mr. Holloway to Mrs. Rodwell of the sum of $390,000.
13 The plaintiff alleges that the conveyance constitutes a resulting trust in the hands of Mrs. Rodwell which has not been rebutted by the evidence. The plaintiff submits that s.13 of the Evidence Act applies with the result that independent corroboration of the conveyance as a gift is required.
14 In an article by Professor Waters found in the McGill Law Journal 1970, vol. 16, no. 2 at p. 199, Professor Waters states:
Where a person transfers his property into another’s name … and does so gratuitously, the principle underlying Dyer v. Dyer, 2 Cox 92, would seem logically to apply… Since equity assumes bargains, and not gifts, he who has title gratuitously put into his name must prove that a gift was intended.
The principle in Dyer v. Dyer [(1788), 30 E.R. 42 (Eng. Ch. Div.)] therefore is that a rebuttable resulting trust is presumed.
15 In the case before me, both counsel conceded that the facts established a rebuttable resulting trust situation.
16 The issue therefore before me is narrowed to whether or not the defendant, Mrs. Rodwell, on the evidence has been able to rebut the presumption of a resulting trust arising out of the gratuitous conveyance of $390,000 made to her.
17 The evidence of Mrs. Rodwell pertaining to this issue was that she became friends with Mr. Holloway, the deceased, over the period of about a year-and-a-half prior to the date of the conveyance. She further states that Mr. Holloway voluntarily gave to her on June 15, 2005 a bank draft for $390,000. There had been a discussion of a gift to assist Mrs. Rodwell upon her retirement prior to this date but Mrs. Rodwell had protested that it was not necessary. When Mr. Holloway gave Mrs. Rodwell the bank draft, Exhibit 7, he kept no record of “the gift”, giving to Mrs. Rodwell the draft and “the customer’s record of draft purchased”. Mrs. Rodwell spoke to her lawyer upon receipt of the draft and was advised that there was nothing wrong with keeping a legitimate gift. No documentation was suggested or prepared by her lawyer on her behalf.
18 Mrs. Rodwell kept “the gift” and invested it.
19 About a year later, there having been no request by Mr. Holloway for a return of the money, nor any request for an accounting, Mrs. Rodwell, of her own volition, offered to give Mr. Holloway $7,000 which represented some of the interest earned by her on the money. She suggested that he take a trip or perhaps buy a new wardrobe. Mr. Holloway at first refused to accept the money but eventually, at Mrs. Rodwell’s insistence, did so.
20 No demand was made for the return of the money prior to Mr. Holloway’s death.
21 All of this evidence was given by Mrs. Rodwell and I accept it as being truthful and accurate.
22 In the transcript of the evidence of Mr. Clive Garrett, he stated that he was 78 years of age in July 2008 and had been an accountant. In the transcript, Mr. Garrett stated that he was told by Mr. Holloway in April or May 2007 that Holloway had asked for the money back from Mrs. Rodwell. Garrett said that Holloway told him that he, Holloway, had given the money to Mrs. Rodwell to avoid income taxes. Mr. Garrett further said: “I thought the whole transaction was pretty damned stupid, to tell you the truth”.
23 Finally, on April 3, 2006, Mr. Holloway completed a will in his own handwriting, Exhibit 9. In that will he lists his assets and divides the residue, after a specific bequest to the “Redemptionist Fathers Roman Catholic Order” equally between his two daughters. The will concludes: “They (his daughters) are also allowed to keep the $200,000 given each of them in previous years.”
24 There is no mention in the inventory of assets in the will of the $390,000 given to Mrs. Rodwell in June 2005.
The King Evidence
25 In my view, the hearsay evidence of Mr. Garrett pertaining to the statements of Mr. Holloway allegedly made in April or May 2007, some twenty months after the conveyance of the $390,000, is inadmissible in this action.
26 Firstly, it is inadmissible under the historic definition of hearsay as going to the truth of the statements made.
27 Secondly, it is inadmissible under the evolving definition of hearsay as being unreliable in the circumstances. It is unreliable as it was given in a situation which reflected the probability of Mr. Holloway attempting to avoid the disdain of Mr. Garrett: “I thought the whole transaction was pretty damned stupid”. It was unreliable some twenty months after the delivery of the money as evidence of Mr. Holloway’ intention in June 2005 when the transaction was made.
28 Thirdly, the utterance of Mr. Garrett was not made as “a part of the transaction”. It was made twenty months later under circumstances that had nothing to do with the transaction. Professor Waters states at p. 203 of his McGill Law Journal article as follows:
As Viscount Simmons put it in Shephard v. Cartwright, quoting Snell’s Principles of Equity,
The acts and declarations of the parties before or at the time of purchase (or of the voluntary transfer), or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration … but subsequent declarations are admissible as evidence only against the party who made them, and not in favour.
29 Fourthly, evidence of an illegal contract or scheme will not be received to rebut the presumption of advancement, the court enforcing the equitable doctrine that the plaintiff must come into court with clean hands. This principle is set out by the Supreme Court of Canada in the case of Goodfriend v. Goodfriend (1971),  S.C.R. 640 (S.C.C.).
30 In my view, this reasoning applies equally to the presumption of a resulting trust and to evidence sought to be admitted to sustain the trust.
Section 13 of the Evidence Act
31 Section 13 of the Evidence Act states:
- 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.
32 What constitutes corroboration sufficient to meet the provisions of s.13?
33 This question was fully canvassed in the case of Paquette v. Chubb (1988), 52 D.L.R. (4th) 1 (Ont. C.A.), a decision of the Ontario Court of Appeal, where the Court stated at p. 14 as follows:
It appears that the best source of judicial authority on corroboration in civil cases relates to s.13 of the Evidence Act. I agree with Watt J. in Sands Estate v. Sonnwald (1986), 9 C.P.C. (2d) at 100 … the learned judge, who was sitting without a jury, then proceeded to set out … propositions relating to corroboration in civil cases:
- That the corroboration required by s.13 must be evidence, independent of the evidence of an opposite or interested party, which shows or tends to show that such opposite or interested party is speaking the truth upon a material issue in the proceedings;
- That the corroboration required by s.13 may be found in direct evidence, circumstantial evidence, or in a combination of both types of evidence;
- That where circumstantial evidence is relied upon as potentially corroborative of the evidence of an opposite or interested party, it must be independent evidence which renders it probable that the evidence of such party upon a material issue is true;
- That several pieces of circumstantial evidence, taken together, may potentially corroborate the evidence of an opposite or interested party,…
- That it is the function of the trial judge to determine in each case which item or items of evidence bear corroborative potential, to so instruct the trier of fact and, thereafter, (the duty) of the trier of fact to determine whether such evidence is, in fact, corroborative;
- That in determining whether evidence bears corroborative potential such evidence must be viewed in the context of the entirety of the evidence adduced save and except without reference to any explanation which may be offered on behalf of the representatives of the deceased person for the acceptance or rejection of such explanation is ultimately a matter for the trier of fact not something which impairs or destroys the corroborative potential of the evidence….
34 I find that the evidence before me, independent of Mrs. Rodwell’s evidence, meets these criteria.
35 The long delay without any demand for an accounting or return of the monies, the failure of Mr. Holloway to keep any written record of the transfer to Mrs. Rodwell, not even the “customer’s record of draft purchased” and the failure of Mr. Holloway to include in the inventory of assets contained in his will any reference to the $390,000 transferred to Mrs. Rodwell, considered cumulatively, constitute sufficient corroboration under s.13 of the Evidence Act.
36 In the result, the provisions of s.13 of the Evidence Act have been met and the presumption of a constructive trust had been rebutted. The transfer of the $390,000 from Mr. Holloway to Mrs. Rodwell by means of the draft dated June 16, 2005 was intended by Mr. Holloway as an outright gift.
37 I hold that the transfer of these funds constitutes a good and valid gift from Mr. Holloway to Mrs. Rodwell.
38 The action of the plaintiff is therefore dismissed.
39 I may be spoken to with respect to the question of costs.