Trusteeship program was not necessarily for people who were incapable of managing finances

Deceased died intestate in 2014, and was survived by two sisters D and J. D renounced her right to be estate trustee, leaving J as sole estate trustee. J determined estate was worth approximately $830,000, and after taxes and expenses each sister was entitled to receive $291,432.70. D received payment in August 2015 and signed release. In November 2015, D was declared incapable of managing her property, and Public Guardian and Trustee (PGT) was appointed guardian for property. PGT became concerned that payment was not full 50 percent share of estate, and PGT's application for order that J pass accounts was granted. J appealed. Appeal allowed. Application judge did not apply correct test under s. 2(4) of Substitute Decisions Act since J was unaware of her sister's mental health difficulties and trusteeship program that D participated in was not necessarily for people who were incapable of managing finances. J did not have reasonable grounds to believe D was incapable of signing release.

Foisey v. Green (2019), 2019 CarswellOnt 13838, 2019 ONSC 4989, Lafrenière J., Myers J., and Williams J. (Ont. Div. Ct.); reversed (2017), 2017 CarswellOnt 20597, 2017 ONSC 7140, W.D. Newton J. (Ont. S.C.J.).

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