Smith Estate v. Rotstein,

• Jurisdiction: Ontario
• Judge: Armstrong, Epstein and Karakatsanis, JJ.A.
• Neutral Citation: 2011 ONCA 491
• Date: 26 January 2011
• Court: Court of Appeal (Ontario)

Smith Estate v. Rotstein (2011), 281 O.A.C. 30 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JL.013

In The Matter Of The Estate of Ruth Dorothea Smith, deceased

Lawrence Jerome Berk Smith, Executor and Trustee of the Estate of Ruth Dorothea Smith (respondent/moving party) v. Nancy-Gay Rotstein , Marilyn Chapnik Smith, Cynthia Joy Smith, Ilyse Jan Smith, Natalie Jill Smith, Tracey Tremayne-Lloyd Smith and Claude R. Thomson, Trustee of the I. & R. Trust settled on November 7, 1991 ( appellant /responding party)

(C52105; 2011 ONCA 491)

Indexed As: Smith Estate v. Rotstein et al.

Ontario Court of Appeal

Armstrong, Epstein and Karakatsanis, JJ.A.

July 5, 2011.

Summary:

Smith executed a will and four codicils. She expressly excluded her daughter and her daughter's issue from taking under her will, except for the third codicil which left a legacy to Smith's granddaughter (i.e., daughter's daughter). Upon Smith's death, her daughter filed a notice objecting to the issuance of a certificate of appointment of estate trustee, alleging a lack of testamentary capacity, undue influence. etc. Smith's son (executor) shortly thereafter applied for a certificate of appointment of estate trustee. Subsequently, the son commenced a motion for summary judgment respecting the will and four codicils and sought to strike the notice of objection.

The Ontario Superior Court, in a decision reported [2010] O.T.C. Uned. 2117, rejected the daughter's grounds of objection to the will and first and second codicils and noted that the beneficiary under the fourth codicil had renounced that gift. The court granted summary judgment ordering that partial probate issue to the son respecting the will and first and second codicils, upon the son giving an undertaking to hold back $250,000 from distribution until such time as a certificate could be issued respecting the other two codicils. Costs of $737,580.29 were awarded. The daughter appealed, arguing that the motions judge erred in granting partial summary probate contrary to the general rule of probate law which required that all testamentary documents be proven or probated at the same time. The daughter also appealed the costs award.

The Ontario Court of Appeal dismissed the daughter's appeal on the partial probate/summary judgment issue. The court allowed the costs appeal and referred the issue of quantum of the fees to the motions judge for reassessment.

Executors and Administrators - Topic 1039

Grant of probate or letters of administration - Application for grant - Limited grant of probate - A testatrix died leaving a will and four codicils - The executor, the testatrix's son, obtained partial probate respecting the will and two of the codicils - The testatrix's daughter appealed, arguing that the motions judge erred in granting partial probate contrary to the general rule of probate law which required that all testamentary documents be proven or probated at the same time - She argued further, that the motions judge erred in failing to recognize that no special circumstances existed in this case to permit him to depart from the general rule - The Ontario Court of Appeal rejected the daughter's arguments - The court stated that while testamentary instruments should generally be proved together, departure from the rule was permissible in special circumstances - Special circumstances existed in this case - See paragraphs 23 to 43.

Executors and Administrators - Topic 5550

Actions by and against representatives - Costs - Where payable by claimant - A testatrix died leaving a will and four codicils, naming her son as executor - The testatrix's daughter filed a notice of objection to the appointment of estate trustee - A motions judge rejected the daughter's objection and granted the executor partial probate (summary judgment) respecting the will and two of the codicils - Costs were awarded on a full indemnity basis ($737,580.20) - The daughter appealed the summary judgment decision and the costs award - The Ontario Court of Appeal dismissed the summary judgment appeal, but allowed the costs appeal - The motions judge erred in the approach taken to costs, by refusing to consider the daughter's challenge to the executor's bill as being unreasonable because the daughter had failed to file her own bill of costs - See paragraphs 44 to 66.

Practice - Topic 7423

Costs - Solicitor and client costs - Measure of solicitor and client costs - Relevant considerations - General - The Ontario Court of Appeal stated that "... there is no requirement for the losing party, who is not seeking costs, to file a bill of costs although it is preferable that he or she does so. However, if the losing party chooses not to file a bill of costs, this is a factor that the judge, who is assessing costs, may take into account when considering the reasonable expectations of the losing party" - See paragraph 50.

Practice - Topic 7431

Costs - Solicitor and client costs - Measure of solicitor and client costs - Probate and estate matters - [See Executors and Administrators - Topic 5550 ].

Cases Noticed:

Robarts, In the Goods of (1873), L.R. 3 P. & D. 110, refd to. [para. 31].

Savage, In the Goods of (1870), L.R. 2 P. & D. 78, refd to. [para. 32].

Day Estate, Re, [1940] 2 All E.R. 544 (P.D. & A.), refd to. [para. 36].

Slater v. Slater (2004), 12 E.T.R.(3d) 246 (Ont. Sup. Ct.), refd to. [para. 37].

Brad-Jay Investments Ltd. v. Szijjarto - see Brad-Jay Investments Ltd. v. Village Developments Ltd. et al.

Brad-Jay Investments Ltd. v. Village Developments Ltd. et al. (2006), 218 O.A.C. 315 (C.A.), leave to appeal refused (2007), 374 N.R. 390; 241 O.A.C. 394 (S.C.C.), refd to. [para. 32].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 45].

Authors and Works Noticed:

Tristram and Coote, Probate Practice (30th Ed. 2006), paras. 3.160 to 3.173 [para. 23].

Counsel:

Earl A. Cherniak, Q.C., and Alisse Houweling, for the appellant;

Richard H. Shekter and Debra L. Stephens, for the respondent.

This matter was heard on January 26, 2011, before Armstrong, Epstein and Karakatsanis, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court, by Armstrong, J.A., on July 5, 2011.