Bryan Gilmartin

The applicants challenged the capacity of Anastasia Helen Troy ("Ann") when she signed her 2022 will and powers of attorney (POAs), alleging incapacity and undue influence.

They sought a declaration that Ann is currently incapable, appointment as guardians, and an accounting.

The respondents moved to dismiss the application.

The court dismissed the challenge to the will, stating it cannot be challenged while the testator is alive.

However, the court found sufficient "suspicious circumstances" to allow the challenge to the 2022 POAs to proceed, noting concerns about Ann's cognitive decline and the respondents' conduct.

The court denied the request for an accounting at this stage due to no direct evidence of mismanagement but granted directions for medical record disclosure and ordered parties to conduct themselves respectfully around Ann.

The applicant commenced an application challenging her late father's will and seeking dependent support.

On the eve of trial, the applicant reached a settlement with the estate trustee and brought a motion to discontinue the proceeding.

The non-settling respondent opposed the discontinuance and sought to be substituted as the plaintiff.

The court granted the motion to discontinue, finding the applicant would be prejudiced if forced to proceed to trial, while the non-settling respondent could still commence his own proceeding.

The motion for substitution was dismissed due to the respondent's unexplained delay in advancing his own claim.

The applicant, in his capacity as Estate Trustee, sought a declaration that the deceased's August 28, 2000 Will was valid and an order requiring the respondent to vacate estate property and pay occupation rent.

The respondent presented a modified version of the will, arguing for its validity or for an intestacy, and sought to buy out the applicant's interest in the property.

The court found the original 2000 Will to be valid, dismissed the modified will and other handwritten notes as non-testamentary, and ordered the respondent to vacate the property and pay occupation rent, as he had no legal interest in the estate property and his actions caused delay and expense to the insolvent estate.

The appellant, Nancy Johnson, appealed the dismissal of her application to prove her mother's 2015 will in solemn form and sought leave to appeal a costs award.

The Court of Appeal upheld the application judge's decision, finding no error in the application of the Neuberger framework.

The application judge correctly determined that the appellant failed to meet the minimal evidentiary threshold to call into question the will's validity or the testator's capacity, and that the respondents successfully answered any challenge.

The court also affirmed the costs award, reiterating that estate litigation is subject to general costs rules and that the appellant's case did not warrant an exception for costs to be paid from the estate.

Following the dismissal of an application challenging a will based on testamentary capacity, the court determined costs.

The applicant argued that public policy considerations in estate litigation justified having her costs paid by the estate.

The court rejected this argument, finding the applicant's concerns about capacity were unfounded and her disinheritance was rational.

The applicant was ordered to pay the successful respondent's costs on a partial indemnity basis, with any shortfall to be indemnified by the estate.

The appellant appealed an order dismissing his cross-motion regarding the administration of his late father's estate.

He sought an extension of time to file an election under s. 6(1) of the Family Law Act on behalf of his incapable mother, arguing his father may have made a subsequent will disinheriting her.

The application judge found no evidence of a subsequent will and that an election was not in the mother's best interests.

The Court of Appeal dismissed the appeal, finding no error in the application judge's factual findings or costs award.

The applicant sought disclosure of medical and legal records relating to her late mother's estate, alleging suspicious circumstances and lack of capacity surrounding a 2015 will that disinherited her.

The executor provided evidence that the mother changed her will after discovering the applicant had improperly transferred joint investment accounts while acting as her attorney for property.

The court dismissed the application, finding the applicant failed to meet the minimal evidentiary threshold required to put the estate to the burden of proving the will in solemn form.

The appellant, Robert Lockhart, appealed a lower court order that declared Powers of Attorney (POAP and POAPC) he arranged for his mother, June Lockhart, void ab initio, and awarded costs to his sister, Barbara Lockhart.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that Robert had reasonable grounds to believe June was incapable of granting the POAPC, thus negating the presumption of capacity under the Substitute Decisions Act, 1992.

The costs order was also upheld.

The applicant and respondent, siblings and joint attorneys for property for their incapable mother, disputed the administration of their late father's estate.

The applicant sought to appoint CIBC Trust as Estate Trustee to administer the estate under a 1974 Will, which left the residue to their mother.

The respondent opposed, arguing their father had made a later will disinheriting their mother, and sought an order compelling an election under the Family Law Act to protect her interests.

The court found no evidence of a later will despite extensive searches, dismissed the respondent's motion, appointed CIBC Trust as Estate Trustee, and declared the 1974 Will valid.

Costs were awarded on a full indemnity basis, capped at $125,000, payable by the respondent, the estate, and the mother.