David Morgan Smith

The applicant, common-law spouse of the deceased, sought an additional $1 million from the estate based on an alleged secret trust and an order for dependant support under the Succession Law Reform Act (SLRA).

The applicant had already received $1 million from the will and cohabitation agreement.

The court dismissed the secret trust claim, finding no clear intention, communication, or acceptance of a trust beyond the existing testamentary provisions.

The dependant support claim was also dismissed, as the court found the deceased had made adequate provision for the applicant, considering her financial independence under the cohabitation agreement, the deceased's lifetime support, and the applicant's current assets, including an imputed $250,000 gift she made to her daughter.

The applicant sought to validate a deceased's self-drafted will that lacked proper witnessing.

The court considered the application under section 21.1 of the Succession Law Reform Act, which allows for the validation of documents expressing testamentary intentions despite formal execution deficiencies.

The deceased died after January 1, 2022, making the new section applicable.

The court found the will clearly expressed testamentary intent and was authentic, having been handed to the executor in a sealed envelope.

Applying the balance of probabilities standard, the court granted the application, validating the will.

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 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 a motion for directions in the passing of accounts for an incapable person's estate, the litigation guardian sought costs against a responding party who was found to be a vexatious litigant.

The court awarded substantial indemnity costs fixed at $36,969, payable personally by the responding party, finding his attempts to re-litigate previously decided guardianship issues amounted to an abuse of process.

The applicants challenged the validity of Fedele Silano's last will and testament, alleging lack of knowledge and approval of its contents and suspicious circumstances surrounding its preparation.

The will significantly altered the distribution of assets compared to an earlier holograph will, primarily by leaving the family residence and a cottage outright to the respondent, Pasquale Silano, rather than a life interest with a gift over to grandchildren.

The court found that the respondent successfully dispelled all alleged suspicious circumstances and that the applicants failed to prove that the testator lacked knowledge of or approval for the will's contents.

The court concluded that the will was valid and could be admitted to probate.

This motion for directions arose during the passing of accounts for an incapable person.

The litigation guardian sought guidance on objections filed by the incapable person's children, Peter and Caroline, who attempted to re-litigate previous guardianship appointments and alleged misconduct.

The court found Peter's objections constituted an abuse of process, struck them, and denied him standing.

Caroline was granted standing but was restricted from re-litigating issues previously decided by final court orders.

The court also expressed concern regarding the property guardian's (BMO Trust Company) non-participation in the motion.

The applicants challenged the validity of a codicil and an amendment to a cohabitation agreement executed by their late father, arguing he lacked testamentary capacity and was subject to undue influence.

The court found that despite a diagnosis of mild dementia, the deceased had testamentary capacity and the circumstances surrounding the execution of the documents were not suspicious.

The codicil and amendment were declared valid.

However, the court found that the deceased's Life Income Fund (LIF) passed to his estate, not to the respondent spouse, based on the clear intentions expressed in the original cohabitation agreement.

The applicant and the deceased separated, and the deceased subsequently changed the beneficiary designation on his life insurance policy to his new partner, the respondent.

The applicant, unaware of the change, continued paying the premiums pursuant to an oral agreement with the deceased.

Upon the deceased's death, the applicant claimed entitlement to the $250,000 policy proceeds based on unjust enrichment and equitable assignment.

The court found that the oral agreement constituted an equitable assignment and that the beneficiary designation was not a juristic reason for the respondent's enrichment.

The court imposed a constructive trust over the proceeds in favour of the applicant.