Litigation seeking to impose constructive trust on estate and its administration captured by s. 28 of Estates Act

Dispute arose around estate of deceased who was survived by his wife and three sons. Estate trustee during litigation (ETDL) was appointed, and after three years of acrimonious litigation trustee's fees were very significant and exceeded $1 million. Trustee was successful on motion for order allowing his fees to be paid from any asset of estate, for priority charge on properties securing his fees, and allowing him to pre-take interim compensation out of money on hand prior to passing of accounts. Wife appealed. Appeal quashed. Appeal was governed by s. 28 of Estates Act, R.S.O. 1990 and as such appeal lay to Divisional Court not Court of Appeal. That attacks on estate arose from allegation of constructive trust did not mean s. 28 was not engaged. Allegation of constructive trust did touch on validity of will or grant of administration.. Litigation seeking to impose constructive trust on estate and its administration was captured by s. 28.

Gefen v. Gaertner (2019), 2019 CarswellOnt 4099, 2019 ONCA 233, K. van Rensburg J.A., M.L. Benotto J.A., and A. Harvison Young J.A. (Ont. C.A.).