Amelia Yiu

The moving party sought panel review under s. 7(5) of the Courts of Justice Act of two single-judge decisions: a refusal to extend time to perfect an appeal of a judgment rejecting allegations of undue influence in an estate matter, and a full indemnity costs award of $16,492.35.

The panel found no error in the refusal to extend time, noting the long unexplained delay, prejudice to the estate, and lack of merit in the proposed appeal.

However, the panel found the motion judge erred in awarding full indemnity costs, as there was no evidence of especially egregious misconduct warranting enhanced costs on appeal, and substituted partial indemnity costs of $9,400.

The applicant, Robert Miller, in his capacity as both the deceased's spouse and Estate Trustee, sought an order to transfer a property (175 Ridge Road West) to himself, relying on a provision in the deceased's will (Paragraph XI) that allowed the Estate Trustee to allocate assets to satisfy Family Law Act (FLA) claims.

The respondents, the deceased's siblings and beneficiaries of the property, argued that the applicant had not elected under the FLA and was therefore deemed to be taking under the will, rendering Paragraph XI inapplicable.

They also asserted a conflict of interest.

The court agreed with the respondents, finding that Paragraph XI was not triggered as no FLA claim had been made and that the applicant was in a clear conflict of interest by attempting to transfer the property to himself.

However, the court granted the applicant a six-month extension to file an FLA claim, concluding that his prior inaction stemmed from a misunderstanding of the will's provisions and that he should have the opportunity to make an informed election.