Benjamin D. Arkin

The applicants, adult siblings, sought a declaration that their late father lacked capacity or was unduly influenced when he executed a new will in 2021 that favoured their brother.

They brought a motion for directions and production of the deceased's medical, legal, and financial records.

Applying the minimal evidentiary threshold from Neuberger v. York, the court found that the applicants failed to adduce credible evidence of incapacity or undue influence.

The court noted that the applicants' evidence consisted largely of conjecture, cherry-picked medical records, and unsupported allegations against the father's caregiver.

The motion and application for directions were dismissed.

The applicant estate trustee sought an order vacating a Notice of Objection filed by the respondent regarding the deceased's 2019 Will.

The respondent alleged lack of testamentary capacity, undue influence, and suspicious circumstances, relying on evidence of the deceased's health issues, uncharacteristic behaviour, and increased medication dosage.

The court applied the minimal evidentiary threshold test from Neuberger v. York and found that the respondent's evidence amounted to mere speculation and did not call into question the validity of the 2019 Will.

The application was granted, the Notice of Objection was vacated, and a Certificate of Appointment of Estate Trustee was ordered to be issued.

Following an earlier order granting comprehensive directions concerning the administration of two related estates, the applicants sought costs.

The applicants had successfully obtained an order requiring, among other things, preservation of estate assets and directions relating to the administration of the estates and the conduct of attorneys acting under a power of attorney.

The court found that the responding estate trustees had taken unreasonable positions by refusing to provide an informal accounting and declining reasonable settlement efforts.

Applying the principles of proportionality and reasonableness under Rule 57.01, the court awarded full indemnity costs to the applicants.

Costs were ordered partly against the respondent trustees personally and partly payable from the capital of one of the estates.

In estate litigation concerning whether $1.3 million transferred by a deceased to the defendant was a loan or gift, the defendants sought costs related to steps taken to remove the plaintiffs’ original counsel due to an alleged conflict of interest arising from counsel’s participation in discussions with the deceased before death.

The court held that the defendant was entitled to costs because the plaintiffs ultimately conceded the removal of counsel after significant preparation had already been undertaken.

However, the court found the circumstances did not justify substantial indemnity costs, emphasizing that no party’s conduct was reprehensible and that the motion itself would not have been complex.

Costs were therefore awarded on a partial indemnity basis in the amount of $15,000 inclusive of disbursements and taxes.

The court also directed that the defendant’s request for leave to bring a late dependant’s relief claim under the Succession Law Reform Act should be determined at trial rather than through a separate pretrial motion.

The applicants brought a motion for an Order for Directions regarding the estates of Enrico and Ida Carfagnini.

They sought to consolidate the two actions, obtain a preservation order, compel the passing of accounts by Ida's attorneys for property, and order the disclosure of third-party solicitor and financial records.

The respondents opposed the consolidation and the preservation order for Enrico's estate.

The court granted the applicants' motion, ordering the consolidation of the actions, a preservation order for both estates, the passing of accounts, and the requested disclosure, finding that the issues in both estates were intertwined and raised significant concerns.