Silver Estate, Re, [1999] O.T.C. 4 (SupCt)

• Judge: Haley, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 22, 1999
• Jurisdiction: Ontario
• Citations: [1999] O.T.C. 4 (SupCt)

Silver Estate, Re, [1999] O.T.C. 4 (SupCt)

MLB headnote and full text

Temp. Cite: [2000] O.T.C. TBEd. JA.049

In the Matter of the Estate of Avrom Aubie Silver, deceased

(File Nos. 02-060/99; 02-061/99)

Indexed As: Silver Estate, Re

Court of Ontario

Superior Court of Justice

Haley, J.

December 22, 1999.

Summary:

The deceased made two wills on the same date. They were designated "Primary Will" and "Secondary Will". Each will appointed the same executors, but dealt with different assets. The Primary Will was probated. The executors had no intention of probating the Secondary Will. They brought two applications to pass their accounts and served notice of the applications to the interested parties. There being no objections, the executors applied to pass the accounts under both wills on an uncontested basis under rule 74.18(9). A chambers judge refused to grant either application and directed a hearing on the issue of whether the court had jurisdiction to pass accounts under a will which had not been probated.

The Ontario Superior Court held that an executor acting under an unprobated will was not required to apply for and obtain probate before applying to pass his accounts.

Executors and Administrators - Topic 1004

Grant of probate or letters of administration - General - Effect of grant - See paragraphs 9 to 22.

Executors and Administrators - Topic 1037

Grant of probate or letters of administration - Application for grant - Multiple wills - See paragraphs 6 to 8, 27 and 40.

Executors and Administrators - Topic 6305

Accounts and passing of accounts - Practice - Procedure - See paragraphs 1 to 42.

Cases Noticed:

Granovsky et al. v. Ontario (1998), 53 O.T.C. 375; 156 D.L.R.(4th) 557 (Gen. Div.), refd to. [para. 6].

Hollwey and Adams, Re (1926), 58 O.L.R. 507 (C.A.), refd to. [para. 13].

National Trust Co. v. Mendelson, [1942] 1 D.L.R. 438, refd to. [para. 17].

Rumble and Simmons, Re (1984), 21 E.T.R. 123 (Co. Ct.), refd to. [para. 18].

Statutes Noticed:

Ontario Rules of Civil Procedure, rule 74.18(1)(c) [para. 25]; rule 74.18(9) [para. 4].

Rules of Civil Procedure (Ont.) - see Ontario Rules of Civil Procedure.

Trustee Act, R.S.O. 1990, c. T-23, sect. 23(1) [para. 34]; sect. 47(1) [para. 37].

Authors and Works Noticed:

MacDonald, Sheard and Hull, Probate Practice (4th Ed. 1996), p. 28 [para. 23].

Widdifield, Surrogate Court Practice and Procedure (2nd Ed. 1930), c. 1 [para. 23].

Williams, Law Relating to Wills (5th Ed. 1980), p. 160 [para. 9].

Counsel:

A. Rabinowitz, for the applicant;

Priti Sachdeva, for the Children's Lawyer;

N. Hedley, for the Public Guardian and Trustee.

These applications were heard by Haley, J., of the Ontario Superior Court, who released the following decision on December 22, 1999.

Please note: The following judgment has not been edited.