2023 ONSC 627, 2023 ONSC 627

CITATION : In the Estate of Endre Gyorgy Kocsis, deceased, 2023 ONSC 627 COURT FILE NO.: 2023-907523 DATE: 2023/01/24 SUPERIOR COURT OF JUSTICE - ONTARIO RE: IN THE ESTATE OF ENDRE GYORGY KOCSIS, also known as GEORGE ANDRE KOCSIS and GEORGE A. KOCSIS, Deceased BEFORE: Justice I.F. Leach COUNSEL: Anne M. Reinhart, for the applicant HEARD: In writing. ENDORSEMENT [ 1 ] Before me is an application by Brandee Lynn Kocsis-Hooper, the only child of the deceased, Endre Gyorgy Kocsis, (also known as George Andre Kocsis and George A.

Kocsis), for a certificate appointing her as estate trustee with a will in relation to her father’s estate. [ 2 ] Mr Kocsis died in the city of Chatham, Ontario, on March 12, 2022, leaving an estate consisting entirely of personal property with a total estimated value of $66,063.21; property which was being managed by the Public Guardian and Trustee on behalf of Mr Kocsis prior to his death. [ 3 ] Although Mr Kocsis executed a will in May of 2012, (in holograph form, but also in the presence of two attesting witnesses), that will apparently was made immediately before Mr Kocsis underwent surgery and failed to name or appoint an executor or estate trustee. [ 4 ] Although Mr Kocsis remained married at the time of his death to Deborah Lynn Kocsis, (the mother of Ms Kocsis-Hooper), and she was named as a beneficiary in the said will, Mr and Mrs Kocsis entered into a formal Separation Agreement on January 15, 2016; an agreement which included provisions whereby each spouse agreed that the spouse surviving the death of the other would not act as the other’s personal representative, and that the deceased spouse’s estate would be administered as if the surviving spouse had died before the deceased spouse. [ 5 ] In the result, (and because a contemplated specific bequest to a child of Ms Kocsis-Hooper related to property disposed of during the lifetime of Mr Kocsis), Ms Kocsis-Hooper will be the only beneficiary entitled to share in her father’s estate. [ 6 ] Having regard to the aforesaid provisions of the Separation Agreement, and a further express renunciation executed by Mrs Kocsis in relation to any entitlement she might otherwise have had to apply for a certificate of appointment of estate trustee with a will, in priority to Ms Kocsis-Hooper, the latter now brings the aforesaid application requesting her formal appointment as her father’s estate trustee. [ 7 ] In her application material, Ms Kocsis-Hooper also has requested an order dispensing with “the requirement (sic) of the estate trustee, Brandee Lynn Kocsis-Hooper, to post an estate administration bond”. [ 8 ] 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 effectively have been met, and the certificate should issue. [ 9 ] However, in my view, the request for an order formally dispensing with a requirement of the applicant to post an administrative bond is unnecessary. [ 10 ] The normally applicable requirement for posting of an administrative bond by applicants for a certificate of appointment as estate trustee with a will who have not been named as an executor or estate trustee in that 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.] [ 11 ] 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.] [ 12 ] 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. [ 13 ] 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”. [ 14 ] As noted above, in the case before me, the total assets of the estate have yet to be finally determined, but the information to date indicates that the estate has assets totalling no more than $66,063.21 in personal property. It accordingly falls within the definition of a “small estate” for purposes of the Estates Act , supra . Moreover: a. the applicant requesting a certificate of appointment as estate trustee resides 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. [ 15 ] 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. [ 16 ] 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. [ 17 ] I accordingly have not signed the submitted draft order submitted by the applicant in that regard. The certificate may be granted and should be granted without such an order, and without the posting of any administration bond security. Justice I.F. Leach Date: January 24, 2023