In her will, Thibeault named Kelly as executor of her estate, charging him with handling her property and making sure it was properly distributed among her 18 heirs, which include Kelly himself. Over seven years has passed since Thibeault's death, and still the estate remains unsettled.
Thibeault died on December 7, 2004. At issue in next week's hearing is over $160,000 that Kelly had removed from Thibeault's personal bank account after she had died and before he filed an inventory with the court. That inventory, filed with the court on August 19, 2005, was required to list all of Thibeult's property at the time of her death, but did not include the $160,000 or so that Kelly had removed from Thibeault's account after she had died. Kelly swore to that inventory, with then-city hall official Wayne Anstey, a lawyer, serving as an official of the court accepting the sworn testimony. Kelly has had over seven years to file a revised inventory, but has not done so.
This summer, many of the other other heirs filed an application with the court, asking that Kelly be removed from his position as executor of the estate. The court scheduled a hearing for next Wednesday, September 19.
If Kelly were to object to the heirs' application, under the terms of the Probate Act (Section 66) he was to file his objection with the court "not less than 10 days before the hearing"—that is, by Sunday, September 9. Today, September 11, Kelly has still not objected.
Having missed the deadline, Kelly's options are limited. Section 66.2 of the Probate Act says that after the deadline is missed, Kelly is not entitled to be notified by the court of any further proceedings, and it's up to the judge if Kelly will be allowed to offer any testimony at the hearing.
Section 66.3 of the act, however, gives the judge the authority to consider an objection that was filed after the deadline, "if, in the opinion of the court, the circumstances warrant it."
A sitting Supreme Court judge will preside over next week's hearing, but court officials have not yet decided which judge that will be, says probate court registrar Cora Jacquemin.
Next Wednesday's hearing is scheduled for 9:30am, and a courtroom has been reserved for the entire day.
It's impossible to know how the judge will rule. But if he or she rules in the heirs' favour and removes Kelly as executor, then the Probate Act requires that Kelly be ordered to give a complete accounting of the estate to the court, up until the date of his removal.
Asked who, if anyone, would take action if testimony and evidence presented at the hearing shows that Kelly had illegally removed money from Thibeault's estate or swore to a false affidavit (the inventory of Thibeault's property at death), or both, Jacquemin says that decision would rest with the judge.
