Thorne Estate (Re)

Parties

Procedural Posture

Petition for Directions in Estate Administration / Will Interpretation / Hearing and Reasons for Judgment Following Petition

Legal Issues

1. 1 Whether the gift of the proceeds of sale of the residence adeemed because the residence was sold before death
2. 2 Whether the sale proceeds were traceable and identifiable such that the demonstrative legacy survives ademption
3. 3 Whether the Executors are entitled to indemnity and costs against the objecting beneficiary

Ratio Decidendi

The gift in clause 3(j) is a demonstrative legacy of the proceeds of sale of the described residence; ademption does not occur where the proceeds are traceable and identifiable. Here the remaining sale proceeds were traceable (held in a GIC and later transferred to the estate) and therefore the gift did not adeem; the named beneficiary is entitled to the remaining sale proceeds. The opposing beneficiary's challenge was unreasonable, so executors are indemnified and awarded costs against him.

Court Disposition

The court held that the gift of the sale proceeds did not fail by ademption; Ms. Danuta Natalia Zaslawska is entitled to the remaining identifiable proceeds of sale. The Executors are indemnified for the petition costs out of the estate on a solicitor and client basis and the opposing beneficiary, Bruce Gamble, must...

Orders

• The gift of the remaining traceable sale proceeds to Ms. Danuta Natalia Zaslawska is declared valid and does not fall into the residue of the estate.
• The Executors are indemnified out of the estate for their costs of this petition on a solicitor and client basis.