2023 ONSC 117, 2023 ONSC 117

CITATION : In the Estate of Sylvia Judy Nizzero, deceased, 2023 ONSC 117 COURT FILE NO.: 2022-26371 DATE: 2023/01/04 SUPERIOR COURT OF JUSTICE - ONTARIO RE: IN THE ESTATE OF SYLVIA JUDY NIZZERO, Deceased BEFORE: Justice I.F. Leach COUNSEL: Paul W. Vandenbosch, for the applicants HEARD: In writing.

ENDORSEMENT [ 1 ] Before me is an application by Anna Lia Kirkpatrick and Mary Grace Nizzero, the sisters of the deceased, Sylvia Judy Nizzero, for a certificate appointing them as estate trustee of a small estate, (with assets totalling just $13,173.68 in personal property), in respect of which the deceased apparently left no will. [ 2 ] In their application material, (and their submitted draft order in particular), the sisters also have requested an order dispensing with “the requirement (sic) of the estate trustees, Anna Lia Kirkpatrick and Mary Grace Nizerro, to post an estate administration bond”. [ 3 ] Having reviewed the application material, I am satisfied that the applicable requirements of Rule 74.1 of the Rules of Civil Procedure and the Estates Act , R.S.O. 1990, c.E.21 , have been met, and the certificate should issue.

Without limiting the generality of the foregoing: a. the deceased was unmarried and had no surviving issue; b. the deceased outlived her parents, and her two surviving sisters, (the two applicants), accordingly are the sole beneficiaries of her estate upon an intestacy; and c. all entitled to share in the estate effectively consent to appointment of the applicants as estate trustees without a will in relation to the deceased’s estate. [ 4 ] However, in my view, the request for an order formally dispensing with a requirement of the applicant sisters to post an administrative bond is both unnecessary and inappropriate. [ 5 ] The normally applicable requirement for posting of an administrative bond by applicants for a certificate of appointment as estate trustee without a will stems from

section 35 of the Estates Act , R.S.O. 1990, c.E.21 , which reads as follows: Bonds 35.

Except where otherwise provided by law , every person to whom a grant of administration, including administration with the will annexed, is committed shall give a bond to the judge of the court by which the grant is made, to enure for the benefit of the Accountant of the Superior Court of Justice, with a surety or sureties as may be required by the judge, conditioned for the due collecting, getting in, administering and accounting for the property of the deceased, and the bond shall be in the form prescribed by the rules of court, and in cases not provided for by the rules, the bond shall be in such form as the judge by special order may direct. [Emphasis added.] [ 6 ] Since passage of the Smarter and Stronger Justice Act, 2020 , S.O. 2020, c.11 , which received royal assent on July 7, 2020,

section 36 of the Estates Act , supra , has been amended to read as follows: When security not required 36.

(1) It is not necessary for the Government of Ontario or any ministry thereof or any Provincial commission or board created under any Act of the Legislature to give any security for the due performance of its duty as executor, administrator, trustee, committee, or in any other office to which it may be appointed by order of the court or under any Act. Idem

(2) A bond shall not be required where the administration on an intestacy is granted to the surviving spouse of the deceased and where, (

a) the net value of the estate as computed for the purposes of

section 45 of the Succession Law Reform Act does not exceed the preferential share prescribed under subsection 45 (6) of that Act; and (

b) there is filed with the application for administration an affidavit setting forth the debts of the estate. Same

(3) Subject to

section 6, a bond shall not be required in respect of a small estate, unless, (

a) a beneficiary of the estate is a minor; or (

b) a beneficiary of the estate is incapable within the meaning of

section 6 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether or not the person has a guardian. Same (4) Subsection (3) does not affect the operation of subsection (2). Subsequently discovered property (5) Subsection (3) ceases to apply if, following the discovery of property belonging to the deceased in the circumstances described in subsection 32 (2), the estate ceases to be a small estate. [Emphasis added.] [ 7 ] Pursuant to the

definitions set forth in

section 1 of the Estates Act , supra , the term “small estate”, as used in the Act, is defined as “an estate that does not exceed the amount prescribed by regulations made under s.1(2) of the Act, which permits the Lieutenant Governor in Council to “make regulations prescribing an amount for the purposes of the definition of ‘small estate’” in subsection 1(1) of the legislation. [ 8 ] Pursuant to

section 1 of O.Reg.110/21 made under the Estates Act , supra , “For the purposes of the definition of ‘small estate’ in

section 1 of the Act, the prescribed amount is $150,000”. [ 9 ] As noted above, in the case before me, the total assets of the estate amount to no more than $13,173.68 in personal property. It accordingly falls within the definition of a “small estate” for purposes of the Estates Act , supra . Moreover: a. both of the applicants requesting a certificate of appointment as estate trustee without a will reside in Ontario, such that

section 6 of the Estates Act , supra, has no application; b. no beneficiary of the estate is a minor; and c. no beneficiary of the estate is incapable within the meaning of

section 6 of the Substitute Decisions Act, 1992 , in respect of any issue in this proceeding. [ 10 ] It follows that, pursuant to the provisions of s.36(3) of the Estates Act , supra , “a bond shall not be required in respect of [this] small estate”. The opening proviso to

section 35 of the Estates Act , supra , exempting situations from that section’s ambit “where otherwise provided by law”, applies to this situation. [ 11 ] There accordingly is no need for a formal order dispensing with a bond requirement that does not exist in the circumstances, and in my view the court should not make unnecessary orders.

Nor, in a world of scarce judicial resources, should it be asked to make orders which are unnecessary. [ 12 ] I accordingly have made and initialled appropriate revisions on the face of the draft order that was submitted with the application, which I otherwise found to be appropriate and in order. The submitted draft order has been signed by me with those indicated revisions, and once formally issued and entered, should be returned to counsel for the applicants along with a copy of this endorsement. “Justice I.F. Leach” Justice I.F. Leach Date: January 4, 2023