2023 ONSC 625, 2023 ONSC 625

CITATION : In the Estate of Sylvia Rotter, deceased, 2023 ONSC 625 COURT FILE NO.: 2023-907525 DATE: 2023/01/24 SUPERIOR COURT OF JUSTICE - ONTARIO RE: IN THE ESTATE OF SYLVIA ROTTER, Deceased BEFORE: Justice I.F. Leach COUNSEL: Meghan A. Harrogate, for the applicants Pamela Wells and David Kenneth Wells HEARD: In writing.

ENDORSEMENT Introduction [ 1 ] Before me are two formally separate motions brought by Pamela Wells and David Kenneth Wells, who respectively are the daughter and son-in-law of the deceased, who died intestate on May 12, 2022. [ 2 ] The first seeks an order that payment of the Estate Administration Tax be deferred until the value of the Estate is established, (which date shall be no later than 6 months from the date of the order), and the second seeks an order dispensing with the bond of administration that otherwise would be required in the circumstances. [ 3 ] Having review the material filed, I generally find it to be in order, and have finalized and signed the draft order authorizing deferred payment of the applicable estate administration tax until such time as the applicants are formally granted access to the deceased’s assets necessary to pay the tax, and have the ability to determine the value of the estate – particularly after the deceased’s residential home has been sold. [ 4 ] I nevertheless have not yet finalized and signed the draft order dispensing with the otherwise applicable bond requirement.

In that regard: a. The material before me satisfies me that an administration bond likely is not required for the protection of creditors, as the deceased was 78 at the time of death, retired from her job as a store manager, living in an unencumbered personal residence, and all of her known debts have been satisfied. b.

Nor is the security of a bond required for the protection of three of the four individuals entitled to share in the deceased’s estate on an intestacy; i.e., the deceased’s three children, being the applicant Pamela Wells and her two brothers, (Doug Van Minnen and John Van Minnen), who all have indicated/confirmed consent to the appointment of the applicants as estate trustees without a will and an order dispensing with the filing of a bond by the applicants. c.

In my view, further information nevertheless is required in relation to the fourth person entitled to share in the deceased’s estate upon an intestacy; i.e., Horst Rotter, the deceased’s surviving husband, and step-father to the deceased’s children.

The material before me includes an affidavit from the applicants, supported by an attached Capacity Letter of Opinion prepared by a Designated Capacity Assessor (Kelly Ann Spezowka) on November 15, 2022, indicating that Mr Rotter is incapacitated, unable to act as an estate trustee, and unable or sign any renunciation and consent.in respect of the relief sought by the applicants. Mr Rotter currently lives in the secured dementia unit of a retirement home in the city of Chatham.

There nevertheless appears to be no indication in the material filed as to whether anyone is formally authorized to address this matter on his behalf pursuant to any ongoing power of attorney Mr Rotter may have granted before his incapacity, or pursuant to any order that may have been made formally appointing a guardian for Mr Rotter. Nor is there any indication as to whether the Office of the Public Guardian and Trustee has been consulted in relation to this matter, in the absence of any such attorney or guardian formally appointed to represented Mr Horst’s interests.

In that regard, I note that sub-paragraph 3(iv) of the affidavit of service of the applicants’ application indicates that the underlying application for a certificate of appointment of estate trustee without a will was served on “the Guardian or Attorney for any adults who meet the definition of “incapable” as set out in

Part 7 of the Application form, and also that service was effected on the Office of the Public Guardian and Trustee if the applicants wrote “None” in the Guardian or Attorney

section of

Part 7 of the Application form. However, a review of

Part 7 of the Application form completed by the applicants does not enter the name of a guardian or attorney for Mr Horst in the relevant space, or the word “None”. The relevant space simply contains empty brackets. In the circumstances, it is not clear to me whether any material relating to this matter has ever been served on any capacitated person formally authorized to represent Mr Horst’s interests in this matter, or on the Office of the Public Guardian and Trustee if no one else has that capacity. d. The administration bond requirement set forth in

section 35 of the Estates Act , R.S.O. 1990, c.E.21 , exists in part to protect an incapacitated estate beneficiary in the position of Mr Horst, and in my view the consent of his step-children to dispense with the bond requirement, on its own, does not suffice to address the question of whether or not such a bond may be needed to protect Mr Horst’s interests in the circumstances.

The court also should be supplied with the views of an attorney, guardian or Office of the Public Guardian Trustee appropriately addressing, on Mr Horst’s behalf, whether a protective administrative bond is required here. [ 5 ] For now, the finalized and signed Order authorizing deferred payment of the applicable estate administration tax should be provided to counsel for the applicant, along with a copy of this endorsement.

[ 6 ] Finally, I note that I am not seized of this matter. The applicant’s motion for an order dispensing with the otherwise applicable administrative bond requirement may be placed before any judge for further consideration, if and when the additional required information is filed with the court. Justice I.F. Leach Date: January 24, 2023