Areta Nadia Lloyd

This appeal concerned the determination of assets in a deceased's estate.

The Court of Appeal set aside the motion judge's order, finding several errors.

The motion judge erred by relying on trust principles without a determined estate representative, misapplying the "one economic unit" concept to presume equal sharing, making flawed credibility findings based on an uncross-examined witness, and making conflicting factual findings.

The appellate court emphasized that complex factual and credibility issues, especially with voluminous records, require oral evidence and that pending applications should be consolidated and heard together after the determination of a valid will or intestacy.

The applicant brought a motion for a declaration that his mother was incapable of managing property and personal care, and to validate 2015 Powers of Attorney while invalidating 2017 revocations and 2019 Powers of Attorney.

The respondent sister opposed, arguing the mother lacked capacity in 2015 and was unduly influenced by the applicant.

Relying on a court-ordered capacity assessment by a neurologist, the court found the mother had capacity in 2015 but lacked capacity by 2017.

The court dismissed the respondent's allegations of undue influence, validated the 2015 Powers of Attorney, and declared the 2017 revocations and 2019 Powers of Attorney void ab initio.

The moving party brought a motion for leave to appeal an order of Dietrich J. dated June 23, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs fixed at $4,000 to the responding party.

The applicant son brought a motion within an application regarding his elderly mother's capacity and the management of her property by his sister.

The mother had been diagnosed with Alzheimer's disease, but the sister disputed the diagnosis and procured new powers of attorney in her favour.

The court found reasonable grounds to believe the mother was incapable of managing her property and personal care, noting flaws in previous capacity assessments arranged by the sister.

The court ordered a comprehensive capacity assessment, a functional assessment, and conditionally ordered the sister to pass her accounts.

The applicant, an estate trustee, sought increased costs on a full indemnity basis for an Application to Pass Accounts.

The respondent, a beneficiary, opposed this, alleging the application was unnecessary and the trustee's compensation was generous.

The court found the applicant's actions prudent and necessary due to the respondent's baseless allegations and refusal to engage in an informal accounting process in New Brunswick.

The court awarded the applicant increased costs of $24,182.47, payable from the respondent's share of the estate, to avoid penalizing the other beneficiary.