Benjamin David Arkin

The court interprets the Will of Yaacov Glickman, deceased, and determines that the gift of the residue of his estate to the Hebrew University of Jerusalem is not void for uncertainty or any other reason.

The court finds that the Will provides for an outright gift to the University, not a formal trust or foundation, and that the "assumptions" in the Will are precatory rather than binding conditions.

The Applicant's concerns about ambiguity are addressed, and the court orders that the residue of the estate be distributed to the Hebrew University in accordance with the Will's guidelines.

This decision addresses two issues in the context of a long-running guardianship and estate dispute: (1) the standing of Indu and Meenu Shewa to participate in the passing of accounts of Sundri Shewa’s property, and (2) the disclosure of medical information regarding Sundri Shewa’s capacity.

The court grants standing to Indu and Meenu, finding their rights and interests may be directly affected by the outcome, and sets out a careful process for the disclosure of sensitive medical records, balancing the need for evidence with privacy concerns.

The court considered whether shares in a co-operative housing corporation, registered to Anne and Jacob Glickman, were held jointly or as tenants in common.

The Estate of Yaacov Glickman sought a declaration that it was the sole beneficial and legal owner of the shares by right of survivorship.

The court found that the shares were held jointly, and upon Anne’s death, her interest passed to Jacob by survivorship.

The court rejected arguments to expand the definition of “land” in the Conveyancing and Law of Property Act to include co-op shares, holding that the Family Law Act presumption of joint tenancy applied.

In a family guardianship dispute concerning an elderly parent with dementia, the applicants sought a court-ordered capacity assessment, broad production of medical, financial, and solicitors’ records, and historic asset information, while the respondent son sought to vary an interim shared-care order.

Applying the factors governing s. 79 of the Substitute Decisions Act, 1992, the court found reasonable grounds to believe the parent may be incapable of managing property and personal care and ordered a current capacity assessment limited to those issues.

The court refused broad documentary production as disproportionate and invasive of privacy, but permitted limited disclosure of medical and financial records if requested by the designated assessor, through s. 3 counsel only.

The court also declined to require a further historic statement of assets and liabilities, finding the existing informal accounting sufficient.

The cross-motion was granted to terminate the failed shared-care regime and designate the respondent son as primary caregiver pending determination of the guardianship application.

The appellants challenged the validity of their deceased father's 2021 will and an inter vivos property transfer, alleging lack of testamentary capacity and undue influence by the respondents.

The application judge dismissed their motion for directions, finding they failed to meet the minimal evidentiary threshold under Rule 75.06.

The Court of Appeal upheld this decision, finding no palpable and overriding errors in the application judge's assessment of the evidence regarding capacity or undue influence, nor in his treatment of the evidence or sufficiency of reasons for dismissing the challenge to the property transfer.

The applicant, Linda Bridgewater, sought an order interpreting the residuary clause of Ronald Douglas Penrose's will, which bequeathed the balance of his estate to a non-existent entity, 'Guide Dogs of Canada.' The court applied the 'armchair rule' to determine the testator's subjective intention, considering extrinsic evidence such as the testator's prior donations to and a brochure from the Canadian National Institute for the Blind (CNIB).

The court found that the testator intended the bequest to go to the CNIB, dismissing alternative interpretations proposed by other guide dog charities.

The applicants, Ada De Novellis and Michael Ceci, brought a motion within a guardianship application concerning their 92-year-old mother, Dolorosa Ceci, who suffers from dementia.

They sought an accounting of proceeds from a charge registered by the respondent, Dario Ceci, against Dolorosa's property, an order for Dario to reimburse Dolorosa for legal fees paid from her assets, and an interim injunction restraining Dario from dealing with Dolorosa's assets.

The court dismissed the motion for an accounting, finding Dario had provided sufficient explanation.

It also dismissed the request for reimbursement of legal fees, instead ordering a charge on Dario's home as security.

Finally, the court dismissed the injunction request, finding no irreparable harm as Dolorosa had sufficient security.

This appeal addressed the correct analytical approach to interpreting a consent judgment, an issue of first impression for the Court of Appeal for Ontario.

The case involved estate litigation concerning the sale of a farm, where the parties had signed Minutes of Settlement and a Consent Judgment.

The application judge had interpreted the Consent Judgment using a dictionary definition, concluding the farm sale provision was not included and that the appellants had repudiated the Minutes of Settlement.

The Court of Appeal held that consent judgments should be interpreted using contractual principles, considering surrounding circumstances, but found the application judge's error immaterial as the Consent Judgment selectively incorporated terms from the Minutes of Settlement, excluding the farm sale.

The Court also upheld the finding that the respondents had accepted the appellants' repudiation of the Minutes of Settlement.

The appeal was dismissed.

This application concerned the enforceability of Minutes of Settlement regarding the sale of a farm property within an estate.

The applicants sought to enforce the Minutes of Settlement to purchase the farm, while the respondents sought to have the property sold on the open market.

The court determined that the Minutes of Settlement constituted a contract, not a judgment.

It found that the applicants had repudiated the contract through extreme and inordinate delays in fulfilling their obligations, including failing to obtain an Agreement of Purchase and Sale (APS) or an Environmental Site Assessment (ESA) which they unilaterally imposed as conditions.

The respondents validly accepted this repudiation.

Consequently, the applicants were no longer entitled to purchase the farm property under the Minutes of Settlement, and the estate trustee was directed to sell the farm on the open market, with proceeds distributed according to the will.

This is a costs endorsement following an unsuccessful application by the applicants.

The respondents, Nick Giannopoulos and Panagiota Papastefanou, were entirely successful.

Nick Giannopoulos was awarded partial indemnity costs from the applicants, with the estate indemnifying the remainder of his costs as he was an estate trustee upholding the will.

Panagiota Papastefanou was awarded substantial indemnity costs due to the applicants' reprehensible litigation conduct, including character vilification and publicizing privileged communications.

The Children's Lawyer, representing minor respondents, was awarded full indemnity costs from the estate, reflecting a fair sharing of necessary costs for protecting the children's interests.

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.

This is an appeal from a judgment vacating a Notice of Objection to a Certificate of Appointment of Estate Trustee with a Will.

The appellant argued the application judge erred in finding they failed to meet the minimal evidentiary threshold required to challenge the will's validity and obtain discovery.

The Court of Appeal dismissed the appeal, affirming that the application judge correctly applied the Neuberger v. York test, which requires an interested person to adduce some evidence that, if accepted, would call into question the will's validity.

The court found no palpable and overriding error in the application judge's assessment of the evidence.

The appellant appealed the dismissal of her application to set aside her deceased mother's will, alleging lack of testamentary capacity, suspicious circumstances, and undue influence.

She also sought leave to appeal the partial indemnity costs order made against her.

The Court of Appeal dismissed the appeal regarding the will's validity, finding no reversible error in the application judge's findings that the mother had the requisite capacity and the will was not surrounded by suspicious circumstances or undue influence.

However, the court granted leave to appeal the costs order, set it aside, and ordered that the appellant bear her own costs of the application, while the respondents' costs are payable from the estate, as the grounds raised by the appellant, though unsuccessful, were not frivolous and warranted court scrutiny.

Following the dismissal of the applicant's claim for dependent relief and a finding that a foreign divorce decree was valid, the parties made written submissions on costs.

The respondents sought substantial indemnity costs of $84,000, while the applicant argued the estate should bear the costs.

The court rejected the applicant's argument that the estate should pay, noting the litigation was driven solely by the applicant.

The court awarded the respondents partial indemnity costs of $50,000.

The applicant sought a declaration that his 2015 Iranian divorce from his deceased ex-wife was invalid, and claimed dependent relief against her estate.

The deceased and their children were killed in the Flight 752 crash.

The court found the divorce was valid under the common law 'real and substantial connection' test, as both parties were born, raised, married, and operated businesses in Iran.

The applicant's alternative claim for dependent relief was dismissed because he failed to provide supporting evidence and was denied leave to split his case by adducing fresh evidence after cross-examinations.

The respondent, Teresa Di Nunzio, brought a motion before the Court of Appeal for Ontario seeking an order for security for costs against the appellant, Lucia Di Nunzio, for both the appeal and the underlying application.

Teresa relied on Rule 61.06(1)(a) and (c) of the Rules of Civil Procedure, arguing the appeal was frivolous and vexatious and Lucia had insufficient assets, or alternatively, that a novel "lack of mutuality of remedy" constituted "other good reason." The court found that while Lucia lacked sufficient assets, the appeal was not frivolous or vexatious.

The court also rejected the novel "lack of mutuality" argument, stating it was essentially a disparity in financial resources and accepting it would unduly broaden the scope of the rule.

The motion was 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.

The applicant, Stoja Sekulovski, sought dependant's support from the estate of her late husband, Jim Sekulovski, under the Succession Law Reform Act.

She also sought an order for her step-son, Michael Sekulovski, to return funds he received from Jim's mother's estate, asserting it was an invalid gift, and to discharge Personal Property Security Act (PPSA) registrations he made against the estate and Stoja, along with statutory and punitive damages.

The court found the purported gift to Michael invalid, granted Stoja dependant's support including vesting the matrimonial home in her, and ordered Michael to discharge the PPSA registrations, pay the statutory amount, and punitive damages for his vexatious conduct.

The Bank of Nova Scotia Trust Company, as Estate Trustee, sought the court's advice and directions regarding the Will of Elizabeth Charles, specifically concerning her son Robert Charles's option to purchase the deceased's property using his residual inheritance and his obligation to pay occupation rent.

The court ruled that Robert could not use his undetermined residual share to purchase the property, as the Will required a cash purchase and his share was subject to outstanding passing of accounts and hotchpot accounting.

The court also ordered Robert to pay occupation rent from May 1, 2021, finding no juristic reason for his continued rent-free occupancy after the purchase option expired.

This application concerned the validity of powers of attorney (POAs) for property and personal care signed by Agnes Adler, a 90-year-old woman, in September 2017.

The applicant, Judy Adler, sought to uphold these POAs, which appointed her and her sister, Andrea Gregor, jointly.

Andrea Gregor, a respondent, challenged their validity, arguing Agnes lacked capacity and was subject to undue influence.

The court also considered the validity of 2015 POAs appointing Andrea solely, the status of Agnes's joint bank accounts with Andrea, and a $25,000 gift from Agnes to Andrea.

The court found the 2017 POAs invalid due to Agnes's lack of capacity to appreciate the consequences of appointing joint attorneys given the sisters' acrimonious relationship, and alternatively, due to undue influence by Judy.

The 2015 POAs, appointing Andrea solely, were upheld.

Andrea was ordered to transfer Agnes's joint bank accounts to Agnes's sole ownership and to repay the $25,000 gift.

The court criticized both daughters for misusing capacity assessments in their litigation.