Fica v. Dmytryshyn, 2018 ONSC 2034
Superior Court of Justice
Nadia Dmytryshyn had two sons, Taras and Bryan, and a brother Ned. Taras and Ned had power of attorney over Nadia's property in the six months before her death and were then her Estate Trustees.
Nadia favoured and financially supported Taras, including in the last six months of her life when Taras had power of attorney. Bryan was jealous and resentful of this fact. Bryan sued Taras and Ned for misappropriating funds from Nadia while as attorneys for property and as estate trustees.
Justice Perell dismissed Byran's motion, as there was no evidence that. The motion was dismissed without costs because of Taras and Ned's failure to comply with the Rules of Civil Procedure regarding the accounting of the estate.
I find as a fact that there is no undue influence. Before her illness, Nadia indulged the needy Taras, and this indulgence continued after she became ill. Before her illness, Nadia’s will was not overborn by her association with Taras, and her will was not overborn after she became ill. She wanted to support the needy Taras, and she did so.
Takeaways - Someone who is mentally competent is free to favour one child over another, and a proper accounting of the estate is important.