2010 ONSC 2975, 2010 ONSC 2975

CITATION : G.Vance Estate v. N.Vance Estate, 2010 ONSC 2975 COURT FILE NO.: 16/09 DATE: 2010-04-26 SUPERIOR COURT OF JUSTICE – ONTARIO RE: The Estate of George Innes Vance, by its Estate Trustee, Alexander Vance - and - The Estate of Noreen Margaret Vance, by its Estate Trustee, Wayne Vance - and - Ruth Vance, Bonnie Brown, Brian Vance, Maragaret Faust, Kenneth Vance, by his Litigation Guardian (to be appointed) and Karen Overland BEFORE: The Honourable Mr. Justice R.M. Thompson COUNSEL: Paul C. Strickland, Counsel, for The Estate of George I. Vance Frederick E. Leitch, Counsel, for The Estate of Noreen M.

Vance Amanda M. Chapman, for the Added Parties HEARD: April 22, 2010 ENDORSEMENT [ 1 ] George and Noreen Vance were married but separated in 1981/1982. [ 2 ] On September 26, 1983, Mr. Justice McKay made an order granting Noreen Vance a one-half interest in five properties owned by George Vance. [ 3 ] These properties were heavily encumbered at the time to mortgagees, creditors and tax arrears. [ 4 ] On September 23, 1994 Noreen Vance died intestate. She was still married to George Vance, the couple never having divorced. She and George Vance had ten children.

Wayne Vance was appointed as Administrator of Noreen Vance’s estate. [ 5 ] Noreen Vance’s estate essentially consisted of a small quantity of cash and her half interest in the five parcels of land. [ 6 ] As Noreen Vance died intestate the Succession Law Reform Act applied. Ms. Vance’s husband George would be entitled to the first $75,000 of her estate, the next third of the estate would also be George Vance’s with the remaining two thirds of the residue passing to the ten children. [ 7 ] It has been said that Noreen Vance’s half interest in the five parcels of land would be valued at or near $75,000.

However, the properties remained heavily encumbered. Assuming these values to be reasonably accurate (none of the parties having obtained an appraisal value of the properties as of the date of Noreen Vance’s death in 1994), then George Vance would be entitled to the lands in question. [ 8 ] Wayne Vance, the Administrator of the Estate of Noreen Vance did absolutely nothing concerning Ms. Vance’s half interest in the five parcels of land. Open to him was a transfer of the properties by himself as the representative of Noreen Vance’s estate to George Vance or the extinguishing of the 1983 court order.

What Wayne Vance did was distribute the liquid assets of the estate (the cash) to each of the ten children. Each beneficiary received $241. George Vance received no cash. In turn each of the ten children executed a release of any claim they may have had against the Estate. George Vance did not execute such a release. [ 9 ] George Vance died on February 15, 2007 leaving a will. His sons, Wayne Vance and Alexander Vance were named as Estate Trustees.

In his will, George Vance apparently favoured Alexander Vance (who received one of the five parcels outright with a first right to purchase another parcel at fair market value) and Shirley Vance who received a second of the five parcels of land. Some of George Vance’s children were not named as beneficiaries in his will. [ 10 ] The lawyer acting for the Estate of George Vance advised Alexander Vance and Wayne Vance that to orderly administer the

estate the issue of the 1983 order of Mr. Justice McKay had to be dealt with. Accordingly, the Estate of George Vance by its Estate Trustee, Alexander Vance brought an Application as against the Estate of Noreen Vance by its Administrator Wayne Vance, asking that the Superior Court extinguish or vacate the 1983 order of Justice McKay. If such an order was granted then the five parcels of land in question would be held in the name of George Vance. [ 11 ] The matter came before Madam Justice Snowie on June 22, 2009.

At that time, counsel acting for Wayne Vance, the Administrator of The Estate of Noreen Vance, and upon his instructions, advised Justice Snowie that the Estate of Noreen Vance did not oppose the order requested by the Estate of George Vance. Accordingly, on June 22, 2009 Madam Justice Snowie ordered that Noreen Vance, her heirs and administrators had no interest in the five parcels of land and that the order of Justice McKay of 1983 was vacated. [ 12 ] On November 25, 2009, the beneficiaries of the Estate of Noreen Vance appeared before Mr.

Justice MacKenzie requesting that they be added as parties to the Application heard by Madam Justice Snowie, that her order of June 22, 2009 be stayed pending a hearing of the motions and for further directions. Mr.

Justice MacKenzie ordered that all the beneficiaries be added as parties to the original Application (the official order only added six) and that Madam Justice Snowie’s order of June 22, 2009 be stayed until the hearing of the two motions. [ 13 ] On April 22, 2010 I was advised by counsel for the added parties that I was to determine whether the order of Madam Justice Snowie was to be revoked and to order that the Application was to proceed in the normal course of events and, if necessary, through to trial. [ 14 ] I have decided that the order of Madam Justice Snowie should stand and any stay of that order lifted. [ 15 ] When the Administrator of the Estate of Noreen Vance, through his counsel, advised Madam Justice Snowie that the Estate did not oppose the order sought by the Estate of George Vance to vacate the order of Mr.

Justice McKay (1983), that advice bound the Estate of Noreen Vance. If the beneficiaries of the Estate of Noreen Vance, feel that the actions of Wayne Vance, the Administrator of the Estate of Noreen Vance, affected their rights as beneficiaries of that Estate, their redress is to look to Wayne Vance, the Estate’s Administrator, not to the Estate of George Vance. It was Wayne Vince’s decision, as Administrator of the Estate of Noreen Vance, to give up any claim or entitlement to the five parcels of land.

Having done so he bound the Estate of Noreen Vance when he advised that court that an order achieving that result was unopposed by the Estate he represented. If the beneficiaries were not happy with Wayne Vance’s decision their remedy is against him, not the third party (in this case the Estate of George Vance). [ 16 ] If I am in error and the Added Parties do have a right to claim against the Estate of George Vance they would still face the necessity of satisfying the two requirements necessary to achieve the setting aside of Madam Justice Snowie’s order:

i) that they have moved in a timely fashion, and; ii) that there is potential merit to their claim. [ 17 ] The issue of the timeliness of the move to set aside the order of Madam Justice Snowie must be resolved in favour of the Added Parties. [ 18 ] However, the issue of the potential merit of the Added Parties claim cannot be resolved in favour of the Added Parties.

In order for the Added Parties to have any possibility of success in the Application there would, of necessity, have to be some evidence that, at the time of the death of Noreen Vance in 1994, the net value of her half interest in the five parcels of land (including any tax liabilities), would be greater than $75,000 plus one third of any residue of her estate. Without any such evidence, and there is none to date, George Vance would have been, by the provisions of the Succession Law Reform Act , entitled to Noreen Vance’s half interest in the lands.

Without some evidence raising a spectre that the other beneficiaries could hurdle the financial bar set by the Succession Law Reform Act it cannot be said there is any potential for success. [ 19 ] Accordingly, I would dismiss the motion and remove any stay of Madame Justice Snowie’s order of June 22, 2009. [ 20 ] I will entertain written submissions of the parties, as to costs, limited to three pages of submissions excluding supporting documentation until May 25, 2010. ______________________ Mr. Justice R.M. Thompson Date: April 26, 2010