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On a summary trial, the court found the attorney breached fiduciary duties, misappropriated estate funds, and was unjustly enriched, awarding repayment and return of cryptocurrency.
The April 24, 2019 handwritten paper was an incomplete draft not signed by the testatrix, lacked certainty, did not evidence a fixed and final testamentary intention and thus cannot be treated as a will under s.8A; the March 27, 2015 document was duly executed in a solicitor's office, the presumptions of capacity and knowledge were not rebutted by evidence of suspicious circumstances or undue influence, and therefore the 2015 will is the valid will of Mary Josephine Burke and the application for proof in solemn form is dismissed.
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The court dismissed a Fraudulent Conveyance Act claim over assets moved into an alter ego trust, finding the plaintiff was not a creditor when the transfer occurred.
Grant extension of time because delay was short, moving parties intended to raise bona fide issues and respondents would not be prejudiced; grant security for costs of $18,000 because the appeal appears frivolous and vexatious, there is good reason to believe the respondents lack sufficient assets in Ontario to satisfy costs, and ordering security is just in the circumstances; award costs of $5,000 to moving parties.
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The motion for a stay was dismissed because the moving parties failed to show a strong case: the motion judge's findings of incapacity and of breaches of fiduciary duty were supported by evidence (including a certified capacity assessment and unexplained withdrawals), no irreparable harm from the PGT's appointment was demonstrated, and the balance of convenience favoured protection of the incapable person's assets under the PGT; under Ogden the court must assume the impugned judgment is correct when deciding a stay application.
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Because the defendant, as attorney under a Power of Attorney, failed to satisfactorily account for entrusted funds and the onus to account lay with her, the court ordered repayment of the outstanding $2,319 and recovery of the claimed costs.
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The appeal is dismissed because the trial judge correctly exercised her discretion in declining to order occupation rent given the appellants obtained an undertaking preventing the property's sale and preventing the respondent from exercising her rights under the will, and correctly attributed occupancy costs to the deceased where caregivers provided 24‑hour care; the trial judge's award to the respondent for personal care and directions on expenses stand.
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The court set aside a without-notice injunction stopping a property sale, holding the attorney could follow Joan Brewis’s current wishes despite an older will.
The court dismissed a Wills Variation Act claim and upheld an accounting counterclaim, finding the plaintiff had misappropriated estate funds while acting as attorney and executor.
The Court fixed costs in favour of the successful respondent in the amount of $20,000.00, all inclusive.
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