Estate Planning

Re D'Angelo Estate

By Hull and Hull LLP

I don't know about you, but I love it when the courts consider novel ideas as a practical solution to a legal problem. That is why the decision of Re D'Angelo Estate, 2010 ONSC 7244 (CanLII) caught my attention.

In D'Angelo Estate, Faust D'Angelo, deceased, resided in St. Catharines, Ontario. In his Last Will, he appointed his son, Emidio, and Emidio's daughter, Denise as co-executors. His estate was divided equally amongst Emidio and his three surviving siblings. The estate, situate in Ontario, was worth approximately $1.5 Million.

Emidio and Denise, because they both lived in the United States, were obliged to obtain a Foreign Executors' Bond. The insurer would only issue a bond if a lawyer in counsel's firm was appointed by the Court as a monitor to supervise the administration of the estate.

The Court allowed the co-executors' motion and appointed the monitor. Here are a few of the interesting findings leading up to its decision:

...        The co-executors both had standing under Rule 74.15(1)(i) as persons who appeared to have a financial interest in the estate. Emidio had a financial interest because he was a beneficiary. The Court found that the financial interest contemplated by the rule may be direct, indirect or contingent and although Denise was not a beneficiary, she had standing due to her entitlement to claim executor's compensation, which was a contingent financial interest in the estate.

...        The Court noted that monitors had been appointed by courts in other situations to monitor the business and financial affairs of a charity and under the oppression remedies in the Ontario Business Corporation Act, which makes no provision for a monitor. 

...        The monitor would be an officer of the court and the responsibilities of an officer of the Court are: 1) to act fairly, honestly and impartially as a fiduciary on behalf of all persons having a financial interest; 2) to comply with the powers granted in the order of appointment; and 3) to be accountable to the Court and to the persons in 1).

...        The appointment of a monitor did not require approval or input from the beneficiaries (the motion was made without notice).

...        Pursuant to Rule 1.01(6), it was okay to modify the prescribed forms as circumstances required and so the form of Certificate could be varied to a 'Certificate of Appointment of Estate Trustees with a Will and Court-Appointed Monitor'.

I certainly think this case is novel and provides an alternative that could be quite a useful solution in some situations.

Sharon Davis

Full post as published by Toronto Estate Law Blog on March 03, 2011 (boomark / email).