benefit of the random chance of a bad choice by the surviving
spouse for that is all that an uninformed election would produce.
Neither the applicant nor the court can say at this point which
regime (FLA or SLRA) would be more favourable to the property
expectations of the other beneficiaries.
[34] In this context, the prejudice that I must consider is the
prejudice inherent in time. Deferring the time to make an election has consequences. Beneficiaries will be delayed in receiving
some or all of their entitlements. The estate will either be prohibited from distributing or will have to reserve assets sufficient to
enable it to account for either election. Estate administration is
a complex enough affair without having the road map of knowing
who is intended to get what effectively taken out of the administrators’ hands for an extended period of time. Some asset values
may change over time. Having all or a substantial portion of the
estate effectively frozen is a burden on the estate and upon its
beneficiaries the materiality of which is a function of its duration.
It is this type of prejudice that I must weigh in the balance.
[35] In light of the non-opposition of the other beneficiaries and
the fact that the estate does not yet have an administrator, I conclude that the prejudice to the estate in extending the time for
Mrs. Aquilina to make her election is very slight. It will be many
months before the estate will likely be in a position to consider its
first steps, let alone a distribution.
Disposition
[36] In the result, I granted the application but reduced the
extension from the two years requested to one year. I did so without prejudice to Mrs. Aquilina applying for a further extension
should circumstances warrant.
[37] The extension granted applied to ( i) the time to make an
election; ( ii) the time for the deemed election to apply; ( iii) the
time to commence an equalization application; and ( iv) the time
during which the distribution of the estate is suspended.
[38] At this point, I simply cannot predict in advance when the
prejudice to the estate and the other beneficiaries will weigh
heavier in the balance than the understandable desire of the
applicant to make an informed choice.
[39] When the estate has an administrator and there has been
a period of time to gather information about the international
interests in particular, a more informed assessment by both the
applicant and the court can be made than is possible now.
Application allowed.
