The deceased made a will in 2001 and a second will in 2011, which is currently lost
The Ontario Superior Court of Justice has issued directions in an estate matter involving a lost will and appointed an estate trustee during litigation.
The dispute in Kacin v. Kacin, 2024 ONSC 3345 involves the estate of Lidia Kacin, who passed away on January 10. The parties involved are her three surviving children. It is undisputed that the deceased suffered from mental health issues, though the duration and extent are contested. Yelka Kacin, the only child who maintained a relationship with the deceased, was involved in her care and became her guardian and trustee in 2020. The other two children, Martina and Edward Kacin had no contact with their mother from 2011 until her death.
In 2001, the deceased prepared a will designating Yelka as the sole beneficiary. However, she prepared a second will in 2011, naming Martina as the sole trustee and beneficiary, citing significant past gifts to Yelka and Edward's financial independence. This 2011 will is currently missing, and Martina sought to probate a copy of it. Yelka and Edward opposed this, relying on the presumption that the will was destroyed and thus revoked. Martina countered that her mother's mental health issues negated her capacity to revoke the will.
The applicant, Martina, sought directions under Rule 75.06 of the Rules of Civil Procedure, which include establishing the issues for adjudication, production orders, mediation, and a litigation timetable. The respondents agreed with most requests but sought an additional order for appointing an estate trustee during litigation.
The Superior Court identified the main issues to be addressed at the hearing as whether the applicant can prove the four elements required to probate a lost will: due execution, tracing possession to the date of death, rebuttal of the presumption of destruction, and proof of contents. The parties agreed that the applicant can satisfy the first and fourth requirements, focusing the hearing on the second and third elements.
Regarding the appointment of an estate trustee, Yelka and Edward supported appointing Brian Evely, a deputy judge and experienced counsel, at a fee of $275 per hour. Martina opposed this, citing cost and suggesting mediation first. The court found the appointment of an estate trustee warranted due to the long-term family conflict and the need for a neutral party to manage estate affairs and production requests.
The court ordered the appointment of Brian Evely as the estate trustee and mediator, with directions to reinvest estate funds and maintain tax compliance. The court also approved the production of the 2011 will's legal file and the deceased's medical reports, with compensation from the estate for related costs. Further production requests from Martina were deemed overly broad and deferred to the estate trustee for determination.
