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The Court of Appeal dismissed an appeal from summary judgment enforcing a second mortgage, finding no genuine issue for trial and lifting the stay.
The prior DeCotiis disclosure order with an express temporal limitation is final and bars production of the Lee and Geddes reports (they post‑date the cutoff) so issue estoppel/abuse of process prevents relitigation; conversely, Documents 673 and 682 fall within the previously ordered scope and the wills exception overrides asserted litigation or third‑party privilege, so the redacted documents must be produced unredacted within seven days.
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On the balance of probabilities the court accepted contemporaneous solicitor records, multiple private meetings, a geriatric expert report and medical records showing the testator understood the nature and consequences of a will and the assets and natural objects of bounty; there was no credible evidence of domination or undue influence by beneficiaries and no well-grounded suspicious circumstances to rebut the presumption of validity; summary determination was therefore appropriate and the 2015 will was proven in solemn form and probate granted to the named executors.
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The Opposing Children pursued serious, unsubstantiated allegations of undue influence, lack of testamentary capacity and elder abuse despite early disclosure of the solicitor's detailed file that dispelled those suspicions; their conduct was unreasonable and reprehensible, so costs follow the event and special costs are warranted to punish and deter that conduct. The Beneficiary Children and the Administrator recover their costs as special costs from the Opposing Children, to be assessed.
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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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Plaintiff failed to prove contractual loans; defendants failed to rebut presumption of resulting trust so transfers are held on resulting trust for plaintiff; alternatively transfers were procured by presumed undue influence because plaintiff was vulnerable from Huntington's disease and defendant had opportunity to dominate his will; credit card charges were authorized and conversion not proven; employer had just cause to terminate Karen for serious breaches of fiduciary duty; plaintiff liable in tort for a single sexual assault incident and awarded $15,000 general damages.
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The Ontario Court of Appeal upheld the refusal to extend time to perfect an estate appeal, but set aside a full indemnity costs order and replaced it with partial indemnity costs.
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 refused to convert the petition to a trial or adjourn for expanded discovery because the respondents failed to show a good reason, unjustified delay and a fishing expedition; the proponent established formal execution and presented overwhelming independent evidence (medical and witnessing attestation) that the deceased had testamentary capacity and knew and approved the 2021 will; suspicious circumstances and undue influence were not proven; counsel's file remained privileged because counsel was retained after execution for litigation, not for estate planning; therefore the 2021 wil…
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On the evidence the court found no fraudulent misrepresentation because the property's farm tax status remained unchanged and no falsehood was proven; no undue influence because negotiations occurred through counsel, Dorothy had legal representation, was not financially dependent on the defendants, obtained a sought outcome and did not repudiate the agreement in her lifetime; and no unconscionability because there was no demonstrated inequality of bargaining power and each party negotiated for valuable consideration. Accordingly the plaintiffs' challenge to set aside the Settlement Agreement…
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