Rusling v. Faibairn-Hatnean (Trustee)
The appeal was dismissed because the trial judge's findings that the appellant intended to release her mother's estate when signing the October 2000 document and that the estate trustee acted properly were supported by ample evidence and therefore would not be disturbed on appeal.
Source-derived case information.
- Citation
- C39006
- Parties
- Appellant: Beverley Rusling; Respondent: Linda Fairbairn-Hatnean (in her capacity as Estate Trustee for the late Nellie May Fairbairn)
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 17 November 2003
- Procedural Posture
- Civil / Appeal to the Court of Appeal for Ontario From Judgments of the Superior Court of Justice (ducharme J.) Dated September 24, 2002 and October 22, 2002
- Outcome
- Appeal dismissed
- Legal Topics
- Estate Release, Findings of Fact, Trustee Conduct, Evidence, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beverley Rusling
Appellant
Linda Fairbairn-Hatnean (in her capacity as Estate Trustee for the late Nellie May Fairbairn)
Respondent
Procedural Posture
Civil / Appeal to the Court of Appeal for Ontario From Judgments of the Superior Court of Justice (ducharme J.) Dated September 24, 2002 and October 22, 2002
Legal Issues
- 1 Whether the October 2000 document constituted a release of the deceased's estate
- 2 Whether the estate trustee engaged in improper or unlawful conduct in the exercise of her duties
- 3 Whether the trial judge's factual findings were supported by the evidence and reviewable on appeal
Ratio Decidendi
The appeal was dismissed because the trial judge's findings that the appellant intended to release her mother's estate when signing the October 2000 document and that the estate trustee acted properly were supported by ample evidence and therefore would not be disturbed on appeal.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs to the respondent fixed at $3,500 inclusive of GST and disbursements
Full Case Text
Judgment text and source record
1 paragraphs
Rusling v. Faibairn-Hatnean (Trustee) Collection Decisions of the Court of Appeal Date 2003-11-17 Docket numbers C39006 Judges O’Connor, Dennis; Catzman, Marvin Adrian; Doherty, David H. Subject Civil Decision Content DATE: 20031117 DOCKET: C39006 COURT OF APPEAL FOR ONTARIO RE: BEVERLEY RUSLING (Applicant/Appellant) v. LINDA FAIRBAIRN-HATNEAN IN HER CAPACITY AS ESTATE TRUSTEE FOR THE LATE NELLIE MAY FAIRBAIRN (Respondent/Respondent) BEFORE: O'CONNOR A.C.J.O., CATZMAN and DOHERTY JJ.A. COUNSEL: Dawn Melville for the appellant Steven Bezaire for the respondent HEARD & ENDORSED: November 13, 2003 On appeal from the judgments of Justice E. Ducharme of the Superior Court of Justice dated September 24, 2002 and October 22, 2002. APPEAL BOOK ENDORSEMENT [1] Ducharme J. made two important findings of fact. First, when the appellant executed the October 2000 document, she intended to release her mother's estate. Second, Ducharme J. found that the respondent, who was not cross-examined on her affidavit, "engaged in no improper or unlawful purpose in the exercise of her duties as estate trustee". [2] There was ample evidence to support each of those findings of fact. There is no dispute that the appellant had the relevant estate records at the time she signed the October 2000 documents and she made no objection until over a year later. [3] The appeal is, therefore, dismissed. [4] Costs to the respondent are fixed in the amount of $3,500, inclusive of GST and disbursements.