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The Court of Appeal for Ontario dismissed an appeal from an order striking the appellants’ defence for repeated non-compliance with production orders in estate litigation.
The court found the gift valid because the donor initiated and pursued the donation, received independent legal advice with a signed certificate confirming understanding, there was no unlawful threat or compulsion, and the evidence of third-party pressure was not credible or sufficient to establish duress; therefore the deed of gift and transfer are effective and irrevocable.
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Leave under s.151 WESA was granted because the applicant is a specified person who gave required notice and made reasonable efforts to have the executor act, is acting in good faith, and has raised an arguable case—based on evidence of possible incapacity and undue influence and the presumption of resulting trust regarding gratuitous transfers—such that pursuit of the claim may be necessary to protect the estate; the court must not resolve contested credibility at the leave stage and the defendant's inaction in obtaining probate would otherwise prevent the applicant from pursuing variation re…
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The court held that costs in this estate trust dispute follow the event, awarding the trustees ordinary costs and no costs to the unsuccessful plaintiffs.
The court granted Island Health’s petition, removed T.W. as E.W.’s representative, and declared him unfit to act as TSDM or to give substitute consent.
The court ordered the two wills variation actions to proceed together in Victoria, but refused to join the related life insurance action, which will be tried separately.
The motion for production of documents was dismissed because the requested records were not shown to be relevant to the validity of the 2015 Will and the appellant failed to demonstrate due diligence required by the Palmer test to justify fresh evidence; accordingly production would not be granted and the motion fails.
Source excerpt
The court granted Ms. Hoy leave under s. 151 WESA to continue and commence estate claims concerning two Clarke Drive properties and related fiduciary, undue influence, and capacity allegations.
On a costs application after discontinuance, the court refused special costs but awarded increased costs on Scale B with a 1.5 multiplier.
The court dismissed a petition to set aside a 2019 power of attorney, found no undue influence or incapacity, and held it lacked jurisdiction to appoint a new health representative.
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