I previously blogged about the case of Gefen v. Gaertner where the Court of Appeal quashed an appeal regarding an estate trustee during litigation (ETDL) and punted the matter to the Divisional Court. Now this estate has generated another appeal regarding the ETDL – this time properly brought before the Divisional Court – which dealt with whether an ETDL’s role continued after a judgment is appealed.

In Gefen v. Gefen, 2021 ONSC 1464(Div Ct), there was litigation regarding whether the deceased’s widow would breach a mutual will agreement with the deceased if she transferred some of her property to one of her sons. The court appointed an ETDL “pending the final disposition” of the litigation. On October 17, 2019, the lower court judge dismissed the challenge to the widow – finding that there was no mutual will agreement. Her other sons appealed.

In the meantime, a dispute arose as to whether the ETDL could continue to act until the appeal concluded. On a motion, a judge determined that the ETDL would continue acting until the appeal was dealt with. This decision was also appealed (this time by the widow).

The Divisional Court dismissed the appeal “Pending” meant “while waiting”, “continuing”, or “not yet decided” – in this case the parties were waiting for a final disposition of the litigation, which included the appeal. “Litigation,” the court noted, “does not end until all appeals are exhausted.”

While counsel for the appellants made valiant arguments, they were stymied by the plain meaning of the order and the fact that there was not a single case that supported their position.

The court ordered that the respondents full indemnity costs be paid to the responding parties, divided between the appellants and the estate.

This case is another example of the principle that an ETDL will continue acting until all appeals are exhausted. As such, where judgment is granted where there is an ETDL the parties should wait until the time to appeal has concluded before steps are taken for someone else to administer the estate.