Adam Avi Hummel

This costs decision in an estate litigation matter addresses the modern approach to costs in estate proceedings.

The court reviews the principles from Sawdon Estate v. Watch Tower and Salter v. Salter Estate, emphasizing that costs are generally to be paid by the unsuccessful party, with the estate indemnifying the estate trustee for any shortfall.

The court finds that both parties acted reasonably in litigating the issue of a holograph will, and orders that all parties' costs be paid out of the estate, balancing fairness, proportionality, and access to justice.

The applicant sought to validate a purported holograph will that bequeathed the deceased's home and contents to her, effectively disinheriting her other children, contrary to previous wills.

The court found suspicious circumstances, including the complete lack of evidence regarding the will's creation, the significant change from prior wills, and the deceased's declining cognitive function.

The applicant failed to discharge the onus of proving the deceased's testamentary capacity and knowledge and approval of the document.

The application was dismissed.

This decision concerns a voir dire on the admissibility of an expert report in an application to determine the validity of a holograph will.

The applicant sought to validate a 2016 holograph will, while the respondents argued the deceased lacked testamentary capacity, asserting a 2012 lawyer-prepared will was the only lawful one.

The respondents retained a geriatric psychiatrist, Dr. Hermann, to provide an opinion on the deceased's testamentary capacity and susceptibility to undue influence.

The applicant challenged the report's admissibility under the Mohan test, arguing it was not necessary and that Dr. Hermann was not qualified or impartial.

The court found the report necessary to understand complex medical concepts and that Dr. Hermann was qualified and impartial, ruling the expert report admissible.

The applicant sought directions under Rule 75.06(1) to access the files of his deceased mother's lawyer, Maria Simone, to investigate a potential challenge to her 2014 will under s. 21.1 of the Succession Law Reform Act.

The applicant, a 10% beneficiary under the 2014 will, wished to review draft wills and notes to determine if a later testamentary intention existed, without formally challenging the 2014 will due to a disinheritance clause.

The court expressed reluctance to grant pre-action discovery, citing concerns about fishing expeditions, solicitor-client privilege, and the lack of a pleaded cause of action.

Despite the estate trustee's consent, the court declined to grant the order on an uncontested case conference, requiring the applicant to return with researched legal argument on the novel issues raised by s. 21.1 and the application of s. 9 of the Estates Act.