A. Sean Graham

The applicant, Michael McArthur, sought an order compelling the respondent, Susan Elizabeth McArthur, to pass accounts for the period she acted as their deceased mother's attorney for property.

The respondent denied acting as attorney and asserted the mother remained capable.

The court found that the respondent did act as attorney for property and was significantly involved in the mother's financial affairs, despite the mother's capacity.

Given significant concerns regarding the management of funds, including unexplained transactions and the disposition of condominium sale proceeds, the court granted leave for the applicant to apply for a passing of accounts, declared the respondent acted as attorney for a specified period, ordered the respondent to provide particulars and submit to cross-examination, and awarded costs to the applicant.

The applicant sought an interim injunction to preserve the respondent mother's assets pending a guardianship application, alleging the mother lacked capacity and was subject to undue influence by a new, much younger husband.

The court dismissed the motion, finding no medical evidence to support the claim of incapacity and that the issue of undue influence was premature as the mother was alive and deemed capable.

The court emphasized that a competent person has the right to make decisions deemed foolish by others.

The applicant, Rowland Hill, acting as Estate Trustee for the Estate of Samuel Jefferson Hill, sought his own removal due to severe health issues caused by the protracted administration and requested directions concerning his informal accounting.

The respondent, Bryan Jefferson Hill, opposed the removal without a formal passing of accounts and the appointment of a replacement trustee.

The court acknowledged the applicant's health concerns and the difficulties in administering the complex estate with limited funds.

While not immediately ordering a formal passing of accounts, the court adjourned the application, intending to permit the applicant's resignation effective September 30, 2024, and directed the applicant to provide an informal accounting within 90 days.

The court also instructed the parties and beneficiaries to actively seek a replacement trustee and explore practical solutions like a deed of arrangement.

The applicant brought an oppression application seeking an order that the respondent corporation pay $999,007.50 to redeem her preference shares.

The respondents argued the payment would render the corporation insolvent under s. 32(2) of the Business Corporations Act and sought a stay pending a related appeal.

The court found the appeal had already been dismissed and did not affect the preference shares.

The court also rejected the insolvency argument, finding the corporation had sufficient assets and equity.

The court ordered the corporation to pay the redemption amount, finding it unnecessary to determine if the failure to pay constituted oppression.

This appeal arose from a dispute between siblings over inherited family companies.

The trial judge found that the parties had an agreement regarding company ownership, that the appellant breached his fiduciary duty to the respondent, and was unjustly enriched.

The appellants challenged these findings, arguing there was no binding agreement, no fiduciary relationship, and that the promissory estoppel claim was invalid and statute-barred.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on the existence of an ownership agreement, unjust enrichment, and breach of fiduciary duty, finding no palpable and overriding error.

The Court noted that the dismissal of the promissory estoppel claim did not affect the outcome.

In a will challenge application, the parties brought cross-motions regarding the appointment of an Estate Trustee During Litigation (ETDL).

The applicants sought to appoint a professional trust company, while the respondent executor named in the impugned will sought to be appointed himself.

The court found that an ETDL was necessary and appointed the respondent executor, noting he had no beneficial interest in the estate, was neutral, and had already been managing the estate's assets.

The court dismissed the applicants' motion to appoint a limited partnership as ETDL, as it was not legally authorized to act in that capacity.

The court also granted directions for an accounting, production of medical records, and interim custody of certain chattels.

The defendant brought a motion under Rule 31.11(6) to read in the discovery transcripts of its deceased corporate representative.

In response, the plaintiff brought a cross-motion seeking production of communications between the deceased representative, the defendant, and its lawyers, as well as documents relating to a consulting agreement between the representative and the defendant.

The court dismissed the request for general communications, finding it was too late to seek discovery documents and that the communications were privileged.

However, the court ordered the production of documents relating to the formation of the consulting agreement, as they were relevant to the credibility of the deceased witness's evidence for the pending Rule 31.11(6) motion.

Following a trial regarding the validity of codicils to a will, the court determined the allocation and quantum of costs.

The Objectors, who unsuccessfully challenged the codicils on grounds of testamentary capacity and undue influence, argued that costs should be paid out of the estate.

The court applied a blended costs approach, ordering the Objectors to pay the successful parties' costs incurred after a second mediation, at which point the Objectors should have reassessed their position.

The court also significantly reduced the costs claimed by some of the successful parties due to duplication of effort and excessive docketing.

The applicants, estate trustees of the late Ellen Kates, sought to propound codicils executed in August 2011.

The objectors challenged the codicils on the grounds of lack of testamentary capacity and undue influence, citing the testator's diagnosis of moderate Alzheimer's disease.

The court found that despite the cognitive impairment, the testator understood the nature and effect of the codicils, the extent of her property, and the claims of those excluded.

The court also found no evidence of coercion or fraud amounting to undue influence.

The codicils were admitted to probate.

The appellant, Peter Childs, appealed a motion judge's decision denying him standing in the passing of accounts for his incapable mother, Eileen Childs.

The motion judge had found the appellant to be a vexatious litigant attempting to relitigate previously decided issues.

The Court of Appeal dismissed the appeal, affirming the finding of vexatious litigation and abuse of process.

The court also issued an order prohibiting the appellant from filing further motions in the passing of accounts proceeding without leave.

Costs decision following a lengthy will challenge trial.

Although the plaintiff ultimately proved the validity of the will and became executor and principal beneficiary, the court found the defendants had reasonable grounds to challenge the will due to numerous suspicious circumstances and the plaintiff’s own conduct.

Applying Rule 57.01 and the modern estates litigation approach, the court held that the usual “loser pays” principle may yield where there is a reasonable basis to question testamentary capacity or execution.

Given the suspicious circumstances and litigation conduct, it was appropriate for the estate to bear the litigation costs.

The court fixed costs for the plaintiff and defendants at specified amounts payable from the estate.

The plaintiff son sought to propound his father's last will, which left the bulk of the estate to him and only $1,000 to each of his five defendant sisters.

The sisters challenged the will on the grounds of lack of due execution, undue influence, and lack of testamentary capacity, pointing to suspicious circumstances including the son's involvement in arranging the will with an unknown lawyer.

The court found that while suspicious circumstances existed, the son successfully proved on a balance of probabilities that the father had testamentary capacity and knew and approved of the will's contents.

The court ordered that a Certificate of Appointment of Estate Trustee with a will may issue.