Chambers Estate, Re

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Gillese, Epstein and Lauwers, JJ.A.
• Citation: (2013), 309 O.A.C. 205 (CA),2013 ONCA 511
• Date: 26 April 2013
• Subject Matter: TRUSTS,EXECUTORS AND ADMINISTRATORS

Chambers Estate, Re (2013), 309 O.A.C. 205 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. AU.007

In The Estate Of Herbert Washington Chambers, deceased

In The Matter Of an Application for a Certificate of Appointment of Estate Trustee with a Will

Violet Agatha Chambers (applicant/respondent) v. Michael Chambers , Clive Oliver Chambers, Marva Chambers, Velma Timol, Mazie May Thomas, Collette Harrison, Jennifer Chang (also known as Jennifer Chong), Natasha Chambers, Christopher Chambers, Andrea Chambers, Adrian Chang, Shara Chang, Michael Nassies Chambers Jr., Rayon Recardo Chambers, Claire Eden Elizabeth Chambers, Lisa Chambers, Rochelle Antonette Fraser, Kimora Chomas (also known as Kimora Camela Thomas) and The Office of the Children's Lawyer (respondents/ appellant )

(C56024; C56025; 2013 ONCA 511)

Indexed As: Chambers Estate, Re

Ontario Court of Appeal

Gillese, Epstein and Lauwers, JJ.A.

August 12, 2013.

Summary:

The testator had two wills, the primary will and the corporate will. The widow was the trustee under both wills. Under the corporate will, the plaintiff (the testator's son) was an alternate trustee. After the testator's death in October 2011, the widow began performing under both wills. In April 2012, a motion judge issued an order that required the widow to file an application for an appointment of estate trustee, failing which she would be deemed to have renounced her right to be appointed (the renunciation order). The widow did not file an application as required. In June 2012, the plaintiff applied for an order appointing him and a trust company co-trustees of both wills. He asserted that, due to the widow's noncompliance with the renunciation order, she had renounced her appointment as trustee. The widow asked to be permitted to resign as trustee and supported the appointment of an institutional trustee. She did not support the appointment of the plaintiff as a trustee. The application judge allowed the widow's application, removing her as trustee and appointing a trust company as sole trustee for both wills. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Executors and Administrators - Topic 351

Appointment, qualification and tenure - Executors - Renunciation - General - [See Executors and Administrators - Topic 901 ].

Executors and Administrators - Topic 383

Appointment, qualification and tenure - Executors - Removal and suspension - Conflict between executors - The testator had two wills, the primary will and the corporate will - The widow was the trustee under both wills - Under the corporate will, the plaintiff (the testator's son) was an alternate trustee - After the testator's death in October 2011, the widow began performing under both wills - In April 2012, a motion judge issued an order that required the widow to file an application for an appointment of estate trustee, failing which she would be deemed to have renounced her right to be appointed (the renunciation order) - The widow did not file an application as required - In June 2012, the plaintiff applied for an order appointing him and a trust company co-trustees of both wills - He asserted that, due to the widow's noncompliance with the renunciation order, she had renounced her appointment as trustee - The widow asked to be permitted to resign as trustee and supported the appointment of an institutional trustee - She did not support the appointment of the plaintiff as a trustee - The application judge allowed the widow's application, removing her as trustee and appointing a trust company as sole trustee for both wills - The plaintiff appealed, asserting that the application judge had not distinguished between removal and passing over and that it was unclear on what basis she had refused to appoint him trustee under the corporate will - The Ontario Court of Appeal dismissed the appeal - Properly understood, the application judge had passed over the plaintiff as estate trustee under the corporate will - There was no error in her having done so - The plaintiff's animosity toward the widow rose above mere friction - Due administration of the estate would have been compromised if he had been appointed a co-trustee as he wished - See paragraphs 87 to 100.

Executors and Administrators - Topic 901

Appointment - Qualification and tenure - Executor de son tort - General - The testator had two wills, the primary will and the corporate will - The widow was the trustee under both wills - Under the corporate will, the plaintiff (the testator's son) was an alternate trustee - After the testator's death in October 2011, the widow began performing under both wills - In April 2012, a motion judge issued an order that required the widow to file an application for an appointment of estate trustee, failing which she would be deemed to have renounced her right to be appointed (the renunciation order) - The widow did not file an application as required - In June 2012, the plaintiff applied for an order appointing him and a trust company co-trustees of both wills - He asserted that, due to the widow's noncompliance with the renunciation order, she had renounced her appointment as trustee - The widow asked to be permitted to resign as trustee and supported the appointment of an institutional trustee - She did not support the appointment of the plaintiff as a trustee - The application judge allowed the widow's application, removing her as trustee and appointing a trust company as sole trustee for both wills - The plaintiff appealed, asserting that the widow's application should have been dismissed - The Ontario Court of Appeal dismissed the appeal - The court rejected the plaintiff's argument that the widow could not be removed because she had already been deemed to have renounced due to her noncompliance with the renunciation order - Under s. 25 of the Estates Act, the widow's right to serve as estate trustee had ceased when she failed to appear according to the renunciation order - However, because the widow alone continued to administer the estate, the intermeddling or de son tort principle applied with the result that the office of executor devolved to her - Consequently, she could be relieved of that role only through the appropriate process for removal or resignation - A consideration of s. 34 of the Act led to a similar conclusion - That ended the analysis as to the primary will - The fact that the plaintiff was an alternate trustee to the corporate will had no effect - A condition precedent to his appointment was that the widow was unable or unwilling to act - That condition was not met until had she brought her application - See paragraphs 63 to 83.

Executors and Administrators - Topic 904

Appointment - Qualification and tenure - Executor de son tort - Acts making person an executor de son tort - [See Executors and Administrators - Topic 901 ].

Trusts - Topic 5933

The trustee - Duties - General - Trustee de son tort - [See Executors and Administrators - Topic 901 ].

Trusts - Topic 5982

The trustee - Removal - Animosity between trustees - [See Executors and Administrators - Topic 383 ].

Trusts - Topic 5984

The trustee - Removal - On co-trustee's request - [See Executors and Administrators - Topic 383 ].

Cases Noticed:

MacDonald v. MacIsaac (1983), 58 N.S.R.(2d) 199; 123 A.P.R. 199 (C.A.), refd to. [para. 65].

Stordy v. McGregor (1986), 42 Man.R.(2d) 237 (Q.B.), refd to. [para. 66].

Cummins v. Cummins (1845), 8 I. Eq. R. 723 (Ch.), refd to. [para. 66].

Holder v. Holder, [1968] Ch. 353 (C.A.), refd to. [para. 66].

Selangor United Rubber Estates Ltd. v. Craddock et al. (No. 3), [1968] 2 All E.R. 1073, refd to. [para. 75].

Coleman v. Ryan (1923), 55 O.L.R. 182 (H.C.), refd to. [para. 75].

Pickering v. Thompson (1911), 24 O.L.R. 378 (Div. Ct.), refd to. [para. 75].

Ellison (Charles J.) Ltd. v. Murray, [1949] O.W.N. 398 (C.A.), refd to. [para. 75].

O'Reilly (No. 2), Re (1980), 28 O.R.(2d) 481 (H.C.), affd. (1981), 33 O.R.(2d) 252 (C.A.), refd to. [para. 76].

Windsor v. Mako Estate et al., [2008] O.T.C. Uned. M74; 43 E.T.R.(3d) 255 (Sup. Ct.), refd to. [para. 90].

Weil, Re, [1961] O.R. 888 (C.A.), refd to. [para. 95].

Crawford Estate, Re (1997), 48 O.T.C. 23; 20 E.T.R.(2d) 182 (Gen. Div.), refd to. [para. 95].

Crawford v. Jardine - see Crawford Estate, Re.

Leguia, Re (No. 2) (1936), 155 L.T.R. 270 (C.A.), refd to. [para. 95].

Carmichael Estate, Re, [2000] O.T.C. 718; 46 O.R.(3d) 630 (Sup. Ct.), refd to. [para. 96].

Harris v. Gallimore (1925), 57 O.L.R. 673 (C.A.), refd to. [para. 96].

Agnew, Re, [1941] 4 D.L.R. 653 (Sask. C.A.), refd to. [par. 96].

Wolfe, Re (1957), 7 D.L.R.(2d) 215 (B.C.C.A.), refd to. [para. 96].

Crompton v. Williams, [1938] O.R. 543 (H.C.), refd to. [para. 96].

Becker, Re (1986), 57 O.R.(2d) 495 (Sur. Ct.), refd to. [para. 96].

Thomasson Estate, Re, [2011] B.C.T.C. Uned. 481; [2011] B.C.W.L.D. 4763; 2011 BCSC 481, refd to. [para. 96].

Bowerman, Re (1978), 20 O.R.(2d) 374 (Surr. Ct.), refd to. [para. 96].

Gonder v. Gonder Estate (2010), 259 O.A.C. 295; 2010 ONCA 172, refd to. [para. 101].

Evans v. Gonder - see Gonder v. Gonder Estate.

Moorhouse, Re, [1946] 4 D.L.R. 542 (Ont. H.C.), refd to. [para. 102].

Statutes Noticed:

Estates Act, R.S.O. 1990, c. E.21, sect 25 [para. 72]; sect. 34 [para. 78].

Authors and Works Noticed:

MacKenzie, James, Halsbury's Laws of Canada, Wills and Estates (1st Ed. 2012), p. 537 [para. 65].

MacKenzie, James, Feeney's Canadian Law of Wills (4th Ed. 2000) (looseleaf), para. 7.26 [para. 65].

Waters, Donovan W.M., Gillen, Mark R. and Smith, Lionel D., Waters' Law of Trusts in Canada (4th Ed. 2012), p. 884 [para. 67, footnote 2].

Counsel:

A. Sean Graham and Christopher M.B. Graham, for the appellant;

Michael Kerr, for the respondent, Violet Agatha Chambers;

David Lobl, for the Bank of Nova Scotia Trust Company.

These appeals were heard on April 26, 2013, by Gillese, Epstein and Lauwers, JJ.A., of the Ontario Court of Appeal. On August 12, 2013, Gillese, J.A., delivered the following judgment for the court.