Clare E. Burns

This decision concerns a motion under section 79 of the Substitute Decisions Act, 1992, regarding the capacity of Carol Jacqueline Black.

The Court orders that Ms. Black undergo a capacity assessment, with her medical records and related materials to be released to all parties and the assessor.

The Court addresses the history of the parties' disputes, the involvement of various professionals, and the need for independent legal representation for Ms. Black.

The ruling balances the privacy interests of Ms. Black with the need for a fair process and the protection of vulnerable persons.

This application concerned the validity of primary wills for two testators, John Douglas Milne and Sheilah Marlyn Milne, which granted executors discretion to determine which assets were subject to the will based on whether probate was required.

The executors sought certificates of estate trustee with a will for these primary wills.

The court dismissed the applications, finding the primary wills invalid due to a lack of certainty of subject matter.

The court held that the subject matter of a trust, including a testamentary trust, must be objectively ascertainable at the time of death, without relying on the retroactive discretion of the estate trustees.

The secondary wills, which included all property without such discretionary exclusions, were deemed valid.

The applicant, an estate trustee and beneficiary, moved to appoint an institutional estate trustee during litigation for her father's substantial estate.

The motion was opposed by the other estate trustees (the applicant's mother and siblings) and another sibling.

The court found that the mother, Ida Rubin, likely lacked capacity, and the other estate trustees had engaged in questionable transactions, including retroactively characterizing assets as jointly held to avoid probate fees, making large gifts from the spousal trust to themselves, and failing to provide proper disclosure or pass accounts despite repeated requests.

The court emphasized its inherent jurisdiction to supervise estates and appoint an estate trustee during litigation to ensure neutral stewardship, protect beneficiaries' interests, and maintain a level playing field, especially given the conflicts of interest and animosity among the parties.

The court addressed costs following the dismissal of a motion by certain respondents to disqualify the applicant's counsel.

The applicant sought full indemnity costs, arguing the motion was tactical and based on unsubstantiated allegations.

The court agreed, finding the respondents' claims of confidential information misuse were disingenuous, particularly given their deliberate disclosure of the "Memo" in question.

The court also noted the tactical use of a summons to witness.

Applying section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court awarded the applicant $25,500 in full indemnity costs against the moving respondents (excluding the Office of the Children's Lawyer and Arsandco Investments Limited), emphasizing that such motions, when brought for illegitimate tactical reasons or with unsubstantiated allegations of unethical conduct, warrant enhanced costs.

Following a successful motion by certain beneficiaries to strike a will challenge on the basis of estoppel, the court determined costs arising from the motion.

The unsuccessful parties argued that costs should be paid from the estate due to the alleged novelty of applying estoppel to bar a will challenge within the limitation period and contended the claimed costs were excessive.

The court rejected that position, emphasizing the modern principle that estate litigation costs are not automatically payable from the estate.

Applying the factors in Rule 57.01 and the Courts of Justice Act, the court fixed partial indemnity costs for the successful moving parties and reduced certain billed amounts for duplication and excess.

Costs were ordered payable personally by the unsuccessful challengers rather than from estate assets.

The moving parties sought to strike a will challenge brought by an estate trustee and her son concerning the validity of the deceased’s 2010 primary and secondary wills.

The estate trustee had administered aspects of the estate for over a year, including paying significant estate taxes, relying on the wills in dealings with third parties, and exercising authority as estate trustee.

The court held that her conduct created an assumption among the parties that the wills were valid and that others relied on that assumption to their detriment, particularly in relation to complex estate planning transactions and tax consequences arising from an estate freeze.

Applying the doctrines of estoppel by representation and estoppel by convention, the court concluded that the estate trustee was barred from challenging the wills.

The son’s parallel challenge was also struck because he lacked independent knowledge of the estate and acted as a proxy for the trustee.

The moving parties sought dismissal of a will challenge brought by a beneficiary alleging lack of testamentary capacity and undue influence in relation to two wills.

The court held that the claim was barred by the two‑year limitation period under the Limitations Act, 2002 because the claimant knew or ought to have known of the material facts shortly after the testator’s death yet commenced proceedings more than two years later.

The claimant had received substantial benefits under the wills and actively participated in estate administration, including sale of assets and receipt of distributions.

The court further held that the doctrines of estoppel by convention and estoppel by representation independently barred the challenge because the parties had proceeded on the shared assumption that the wills were valid and the estate trustees relied on that assumption in administering the estate.

The will challenge was therefore dismissed.

Following an earlier judgment concerning the conduct of a fiscal guardian under the Substitute Decisions Act, the court determined the appropriate costs award.

The applicant sought costs on a substantial indemnity basis against the respondent whose management of the incapable person’s assets had been found highly improper.

The court held that costs should not be borne by the incapable person or estate where doing so would undermine the protective objectives of the statute.

Given the respondent’s conduct before and during the litigation, substantial indemnity costs were justified, though certain portions of the legal bill were reduced due to concerns about duplication of effort within counsel’s team.

Costs were ordered payable by the respondent within 30 days of entry of judgment.

Following litigation concerning the resignation of a trustee and the mechanism for appointing replacement trustees under a family trust, the court determined the issue of costs.

Competing groups of beneficiaries had disputed whether the court should appoint an institutional trustee or whether the mechanism set out in the testator’s will should govern.

Although one group succeeded on the substantive issue, the court held the cross-application seeking an independent trustee was reasonably necessary to ensure proper administration of the estate.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles governing estate litigation costs, the court concluded that fairness and the importance of the issues justified payment of most parties’ costs from the estate.

The court fixed specific amounts payable to each party.

Application concerning the removal of an attorney for property under a continuing power of attorney pursuant to the Substitute Decisions Act, 1992.

The applicant alleged that the co‑attorney breached fiduciary duties through mismanagement of the incapable person's assets, failure to account, risky investments, and lack of transparency.

The court reviewed statutory duties of attorneys under ss. 32, 37, and 39 of the Act and considered evidence of the grantor’s declining cognitive capacity and financial vulnerability.

The court found strong and compelling evidence of misconduct and neglect, including speculative investments, unpaid taxes, failure to keep proper accounts, and disregard of fiduciary obligations.

The respondent was removed as attorney for property and the remaining co‑attorney was left as sole attorney subject to ongoing accounting obligations.