Smith Estate v. Rotstein

Smith Estate v. Rotstein

Partial probate and partial summary judgment were permissible because there was no credible evidence that the 1987 will and the first two codicils were invalid on grounds of lack of capacity, lack of knowledge, undue influence or suspicious circumstances; the appellant had no interest in the third and fourth...

Source-derived case information.

Citation
2011 ONCA 491
Parties
Respondent (moving Party), Executor and Trustee of the Estate of Ruth Dorothea Smith: Lawrence Jerome Berk Smith; Appellant (responding Party): Nancy-Gay Rotstein; Marilyn Chapnik Smith; Cynthia Joy Smith; Ilyse Jan Smith; Natalie Jill Smith; Tracey Tremayne-Lloyd Smith; Claude R. Thomson, Trustee of the I. & R. Trust settled on November 7, 1991
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
5 July 2011
Procedural Posture
Civil Probate/estate Litigation / Appeal From Superior Court of Justice Summary Judgment and Costs Order (motion for Partial Summary Judgment/probate)
Outcome
Appeal from summary judgment dismissed on the merits; appeal in respect of costs allowed (leave granted) and costs award set aside and remitted for reassessment
Legal Topics
General Rule of Probate, Partial Probate, Testamentary Capacity, Undue Influence, Summary Judgment, Notice of Objection, Costs Assessment
Source Language
english
Probate Wills and Estates Civil Procedure Costs General Rule of Probate Partial Probate Testamentary Capacity Undue Influence +3 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 10 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Lawrence Jerome Berk Smith

Respondent (moving Party), Executor and Trustee of the Estate of Ruth Dorothea Smith

Nancy-Gay Rotstein; Marilyn Chapnik Smith; Cynthia Joy Smith; Ilyse Jan Smith; Natalie Jill Smith; Tracey Tremayne-Lloyd Smith; Claude R. Thomson, Trustee of the I. & R. Trust settled on November 7, 1991

Appellant (responding Party)

Procedural Posture

Civil Probate/estate Litigation / Appeal From Superior Court of Justice Summary Judgment and Costs Order (motion for Partial Summary Judgment/probate)

Legal Issues

  1. 1 Whether partial probate and partial summary judgment may be granted with respect to some testamentary instruments notwithstanding the General Rule requiring probate of all testamentary documents together
  2. 2 Whether special circumstances justified departing from the General Rule in this case
  3. 3 Whether the motion judge erred in law or principle in granting partial summary judgment that admitted the 1987 will and first two codicils to probate while leaving third and fourth codicils for later adjudication

Ratio Decidendi

Partial probate and partial summary judgment were permissible because there was no credible evidence that the 1987 will and the first two codicils were invalid on grounds of lack of capacity, lack of knowledge, undue influence or suspicious circumstances; the appellant had no interest in the third and fourth codicils so admitting the earlier instruments did not undermine transactional certainty; however the motion judge erred in his assessment of costs by insufficiently addressing the substantive critique of the respondent’s bill and by placing excessive weight on the appellant’s failure to file a bill of costs, warranting leave and a reassessment of quantum by the motion judge.

Court Disposition

Appeal from summary judgment dismissed on the merits; appeal in respect of costs allowed (leave granted) and costs award set aside and remitted for reassessment

Orders

  • Appeal dismissed in respect of the motion judge’s grant of partial summary judgment and order admitting the 1987 will and the first and second codicils to probate
  • Leave to appeal the costs order granted