Gail S. Nicholls

This decision addresses costs following a five-day summary trial in an estate matter concerning the authenticity of a "Questioned Document" and ownership of various assets.

The Estate Trustee was largely successful, particularly regarding the document's authenticity and several asset claims.

The court found the Respondents, primarily Alex Hayward, prolonged the proceedings by disputing the document's authenticity and other claims.

Applying principles of estate costs, the court ordered full indemnification for the Estate Trustee, with substantial indemnity costs payable by the active Respondents (Alex, Shawn, David, Lori Hayward) and the balance from the Estate.

The active Respondents also received a portion of their costs from the Estate due to partial success on some claims.

The plaintiff sought to prove a 2013 will executed by the deceased, which left the family farm to her and the residue to the deceased's nieces and nephews.

The defendant brother challenged the will, alleging it was not signed by the deceased or not signed in the presence of two witnesses, relying on the discovery of an unwitnessed copy of the will shortly after death.

The court accepted the evidence of the two attesting witnesses and found that the will was duly executed in accordance with the Succession Law Reform Act.

The 2013 will was declared valid and the plaintiff was granted a Certificate of Appointment as Estate Trustee.

The applicant, Rosemary Whelan, brought a motion to transfer a passing of accounts proceeding from Toronto to Ottawa.

The Estate Trustee, Royal Trust Corporation of Canada, and other interested parties opposed the transfer.

The court found the motion premature, noting that the application to pass accounts had just commenced in Toronto, and further procedural steps, such as filing objections and a hearing for directions, were pending.

The judge emphasized that a definitive determination of venue, particularly concerning the need for live witnesses, was not yet possible.

The motion for transfer was dismissed without prejudice, with costs reserved to the judge hearing the passing of accounts.

This endorsement addresses the costs of a dismissed motion where the applicant sought leave to extend limitation periods under the Family Law Act for an equalization claim, suspension of estate distribution, and payment of expert costs by the estate.

The respondent, Sean Lundy, was wholly successful on the motion and sought full indemnity costs based on reasonable offers to settle.

The court found the applicant behaved unreasonably in refusing the respondent's settlement offers and awarded the respondent $15,000 in fixed costs, payable by the applicant.

The applicant, Carol Lundy, sought an order to extend the limitation periods under the Family Law Act (FLA) to file an election and equalization application, suspend estate distribution, and have the estate pay for expert valuations.

The motion was brought more than six months after the deceased's death, past the statutory deadline.

The respondent, Sean Lundy (son and co-executor), opposed the extension, arguing Carol's delay was not in good faith and would cause substantial prejudice.

The court dismissed Carol's motion, finding she failed to demonstrate good faith in her delay, having had access to financial information, acted as co-estate trustee, accepted gifts under the will, and tacitly acquiesced in the distribution of company shares.

The court also noted some prejudice to Sean due to the partial distribution of the estate.

An application was brought by family members seeking appointment as guardians of property and personal care for an elderly individual alleged to be incapable due to dementia and declining living conditions.

Medical evidence from the long‑time family physician and a geriatric assessment confirmed significant cognitive impairment and inability to manage finances, medications, and personal care.

The court found the respondent incapable under the Substitute Decisions Act and determined that guardianship was necessary for both property and personal care.

The applicants were appointed joint guardians, the respondent’s prior powers of attorney were terminated, and authority was granted to enlist police assistance if necessary to secure the respondent’s safety and relocation.

Security for the guardianship was waived initially unless assets exceeded a specified threshold.

The respondent beneficiary brought a motion seeking an order to compel the estate trustees to make an interim distribution of the estate's assets before the passing of accounts.

The estate trustees had refused to make the distribution after the respondent objected to their compensation and threatened litigation over the sale of the deceased's residence.

The court dismissed the motion, finding that the estate trustees had not acted with mala fides and reasonably exercised their discretion to withhold distribution until their accounts were approved by the court.

The plaintiffs sought leave to appeal orders removing their solicitor of record and awarding costs.

The motion judge considered the test under Rule 62.02(4) of the Rules of Civil Procedure for granting leave to appeal.

The underlying orders were based on a conflict of interest arising from a solicitor’s prior solicitor-client relationship and the potential use of confidential information, applying the principles from Martin v. MacDonald Estate (Gray).

The court found no good reason to doubt the correctness of the original decision removing counsel and awarding costs.

Leave to appeal was refused and the parties were ordered to bear their own costs of the motion.