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Appeal to rectify will missing a residue clause dismissed due to insufficient evidence of testamentary intention.
The appellant estate appealed the dismissal of an application to rectify a will that lacked a residue clause.
The testator and her life partner had wills drafted by the same lawyer, but the testator's will omitted a residue clause, resulting in the residue passing on intestacy to her brother.
The application judge found that while the omission was an error, the evidence of the testator's intention was not so strong that no other contrary intention could be supposed, particularly given the lack of evidence from the drafting solicitor.
The Court of Appeal found no palpable and overriding error in the application judge's assessment of the evidence and dismissed the appeal.
Summary judgment denied where evidence raised triable issue of fiduciary relationship between lender and borrower.
A lender brought a motion for summary judgment seeking repayment of a loan exceeding $1.6 million and dismissal of the borrower’s counterclaim.
The borrower, a First Nation, alleged that the lender negligently advanced loans and acted in an advisory capacity when financing land purchases intended for a reserve, creating a fiduciary or special relationship beyond a typical debtor‑creditor relationship.
The borrower asserted that the lender’s conduct contributed to financial losses and raised an equitable set‑off defence grounded in alleged breaches of duty.
The court held that the evidentiary record raised genuine issues regarding whether the lender assumed an advisory role and whether exceptional circumstances created a fiduciary relationship.
Because those issues required a detailed factual assessment and credibility determinations, summary judgment was inappropriate.
