David Delagran

The applicant challenged the validity of her mother's 2016 Will and an inter vivos transfer of the mother's home to the respondent sister, alleging lack of capacity and undue influence.

The mother had a history of cognitive decline and was highly dependent on the respondent, who isolated her from the applicant.

The court found that the mother lacked testamentary capacity at the time the documents were executed and was subjected to undue influence by the respondent.

The 2016 Will and the property transfer were set aside, and the mother's prior 2007 Will was reinstated.

Following the dismissal of the defendant's motion to set aside a Certificate of Pending Litigation, the successful plaintiffs sought costs of $19,726.56, arguing for substantial indemnity based on an offer to settle.

The court found the offer was arguably not timely under Rule 49 and doubted whether a responding party on a motion is entitled to the same costs consequences as a plaintiff in an action.

Applying principles of proportionality and Rule 57, the court awarded the plaintiffs partial indemnity costs fixed at $10,187.30.

At a trial management conference for a will challenge and related gift challenge, the court directed that the two proceedings be tried together to avoid duplicating evidence regarding the deceased's capacity.

The court ordered that evidence in chief be given primarily by affidavit, with limited oral examination, and set a timetable for the exchange of materials and a pre-trial conference.