McLaughlin v. McLaughlin

McLaughlin v. McLaughlin

The appeal is allowed because Lemon J.'s nunc pro tunc rectification implicitly determined the secondary will's validity; the application judge erred by using the prior finding that the testatrix did not read the will to invalidate the rectified will, which was circular and undermined the rectification order; accordingly the secondary will is valid.

Citation
2016 ONCA 899
Parties
Applicant (appellant): Daniel McLaughlin, Estate Trustee of the Estate of Elizabeth Anne McLaughlin; Respondent: Thomas McLaughlin; Respondent: Judith Corrado; Intervenor: Michael J. Walsh
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
28 November 2016
Procedural Posture
Will Validity Appeal; Application Under Rule 74.04 Rules of Civil Procedure / Appeal to Court of Appeal From Superior Court Judgment and Costs Order; Oral Hearing November 18, 2016
Outcome
Appeal allowed; application judge's judgment holding the secondary will invalid set aside; substituted order declaring the secondary will valid; costs to appellant fixed at $10,000 on a partial indemnity scale; costs order as it related to self-represented respondents set aside.
Legal Topics
Rectification of Will, Validity of Will, Intestacy, Costs on Appeal, Proof in Solemn Form
Source Language
English
Civil Wills and Estates Probate Costs Rectification of Will Validity of Will Intestacy Costs on Appeal +1 more

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Parties

Daniel McLaughlin, Estate Trustee of the Estate of Elizabeth Anne McLaughlin

Applicant (appellant)

Thomas McLaughlin

Respondent

Judith Corrado

Respondent

Michael J. Walsh

Intervenor

Procedural Posture

Will Validity Appeal; Application Under Rule 74.04 Rules of Civil Procedure / Appeal to Court of Appeal From Superior Court Judgment and Costs Order; Oral Hearing November 18, 2016

Legal Issues

  1. 1 Whether the secondary will was valid despite clerical errors and the testatrix not having read it
  2. 2 Whether a nunc pro tunc rectification order implicitly determines the validity of a will
  3. 3 Whether the application judge erred by using Lemon J.'s finding that the testatrix did not read the will to invalidate the rectified will

Ratio Decidendi

The appeal is allowed because Lemon J.'s nunc pro tunc rectification implicitly determined the secondary will's validity; the application judge erred by using the prior finding that the testatrix did not read the will to invalidate the rectified will, which was circular and undermined the rectification order; accordingly the secondary will is valid.

Court Disposition

Appeal allowed; application judge's judgment holding the secondary will invalid set aside; substituted order declaring the secondary will valid; costs to appellant fixed at $10,000 on a partial indemnity scale; costs order as it related to self-represented respondents set aside.

Orders

  • Appeal allowed and the application judge's judgment holding the secondary will invalid is set aside
  • Order substituted: the secondary will is valid