Case Analysis: MacKinnon v. MacKinnon, 2025 ONSC 2426 (CanLII)
Overview
MacKinnon v. MacKinnon (2025 ONSC 2426) is an Ontario Superior Court of Justice decision addressing two applications concerning the estates of Robert Wilson MacKinnon and Maxine Roxella MacKinnon. The court heard the applications together under Rule 6.01(1) of the Rules of Civil Procedure. The applications sought to pass over the named estate trustees, appoint a succeeding estate trustee, validate a codicil for Robert’s estate, order an accounting, and determine costs. The decision, rendered by Justice R.E. Charney on April 22, 2025, resolved long-standing delays in estate administration and addressed disputes over a codicil’s authenticity.
The Facts
Maxine Roxella MacKinnon died on April 30, 2003, and her husband, Robert Wilson MacKinnon, died on October 11, 2006. They were survived by their children, Robert William MacKinnon (William) and Kimberly Jo-Anne MacKinnon (Kimberly). William, incapacitated by severe dementia, is represented by his daughter and litigation guardian, Bobbi-Jo MacKinnon, under a Continuing Power of Attorney dated June 17, 2020. The primary asset of both estates is a cottage at 63 Dwire Road, Ontario, initially owned by William, then transferred to William and Maxine as tenants in common by 1983.
Maxine’s Will, dated October 23, 1998, appointed Robert as estate trustee, with William and Kimberly as alternates, bequeathing her estate (including her 50% cottage interest) to Robert or, if predeceased, her cottage interest to Kimberly and the residue split equally between William and Kimberly. Robert’s Will, also dated October 23, 1998, mirrored Maxine’s. Robert executed a Codicil on September 27, 2005, bequeathing his 50% cottage interest (inherited from Maxine) to William. The Codicil was handwritten by Robert’s sister, Elizabeth Badour, witnessed by neighbors Debra and Robert Mathison, and supported by Badour’s affidavit, as the Mathisons could not be located.
Neither estate has been administered in over 20 years, with no Certificates of Appointment issued. Kimberly, an alternate trustee, promised to begin administration in February 2024 but took no action. The applications, filed under court file numbers CV-24-00002263-00ES (Robert Estate) and CV-24-00002264-00ES (Maxine Estate), sought to pass over William and Kimberly as trustees, appoint George Morison as succeeding trustee, validate Robert’s Codicil, and order Kimberly to provide an accounting. Kimberly consented to Morison’s appointment at the hearing but opposed the Codicil’s validation, questioning its authenticity without evidence.
The Law
The court’s authority to remove or pass over estate trustees derives from sections 5(1) and 37(1) of the Trustee Act, which permit appointing new trustees when necessary. The test for passing over a trustee mirrors removal grounds, as established in Ford v. Mazmann (2019 ONSC 542). The Court of Appeal in Chambers Estate v. Chambers (2013 ONCA 511) emphasized that courts should respect a testator’s choice unless “there is no other course to follow,” prioritizing the welfare of beneficiaries (Sassano v. Iozzo, 2024 ONSC 1517). Inaction by a trustee justifies passing over, as seen in Kinnear v. White (2022 ONSC 2576).
For codicil validation, Rule 74.04(1)(d)(i)(C) of the Rules of Civil Procedure requires an affidavit of execution or, if witnesses are unavailable, “such other evidence of due execution as the court may require.” The Codicil’s execution must comply with section 4(2) of the Succession Law Reform Act, requiring two witnesses. An accounting may be ordered under Rule 74.15(1)(d) to clarify estate assets.  Costs in estate litigation follow civil litigation rules under section 131 of the Courts of Justice Act and Rule 57, unless public policy considerations, such as ensuring proper estate administration, apply (Sawdon Estate v. Sawdon, 2014 ONCA 101). Costs may be borne by the estate or parties personally, depending on the litigation’s necessity and conduct.
Analysis
The court granted the appointment of George Morison as succeeding estate trustee for both estates, finding sufficient grounds to pass over William and Kimberly. William’s incapacity rendered him unable to act, and Kimberly’s failure to administer the estates, despite 20 years since Maxine’s death and her 2024 promises, constituted inaction warranting intervention (Kinnear v. White). Kimberly’s consent at the hearing did not negate the need for litigation, as her prior opposition delayed resolution. The court’s decision aligned with Chambers Estate, prioritizing the beneficiaries’ welfare and the estates’ administration.
On the Codicil, the court accepted Elizabeth Badour’s affidavit as sufficient evidence of due execution under Rule 74.04(1)(d)(i)(C). The Codicil met section 4(2) requirements, having been executed in the presence of two witnesses. Kimberly’s unsubstantiated concerns about authenticity lacked evidentiary support, and Badour’s presence during execution provided reliable testimony. This ruling ensured Robert’s testamentary intent—bequeathing his cottage interest to William—was upheld.
The court ordered Kimberly to provide an informal accounting for Robert’s Estate from October 11, 2006, to the order date, as her role as alternate trustee and residence with Robert raised questions about asset management. No accounting was required for Maxine’s Estate before Robert’s death, as he was the executor. This balanced the need for transparency with practical limits on Kimberly’s responsibility.
Costs were awarded on a full indemnity basis, totaling $29,128.86, split equally between Kimberly personally and Robert’s Estate. The court followed Sawdon Estate, noting the litigation was necessary due to the trustees’ inaction, a problem attributable to the testators’ estates. Kimberly’s late consent increased costs, justifying her personal liability. The estate’s portion, likely affecting William due to the cottage’s ownership, was deemed fair given the litigation’s purpose.
Lessons Learned
  1. Timely Estate Administration is Critical: Delays in administering estates, as seen in the 20-year inaction here, complicate asset distribution and increase litigation risks. Executors must act promptly to fulfill their duties.
  2. Incapacity Requires Proactive Measures: William’s dementia highlighted the need for alternate trustees or powers of attorney to ensure estate administration continues when a trustee becomes incapacitated.
  3. Clear Testamentary Documents Prevent Disputes: Robert’s Codicil, while valid, faced scrutiny due to missing witness affidavits. Properly executed and stored documents reduce challenges to authenticity.
  4. Court Intervention Protects Beneficiaries: Courts will intervene to pass over trustees who fail to act, ensuring beneficiaries’ interests are safeguarded, as guided by Chambers Estate and Sassano v. Iozzo.
  5. Costs Reflect Conduct: Late consent or opposition, as with Kimberly, can lead to personal cost liability. Parties should cooperate early to minimize financial burdens, per Sawdon Estate.