Genevieve Madill

The Court of Appeal for Ontario dismissed the appeal concerning the interpretation of a will provision granting an option to purchase a townhouse.

The court upheld the application judge’s finding that the option was properly exercised within the required time and that the will’s terms were sufficiently certain.

The court also rejected arguments regarding the necessity of a separate agreement of purchase and sale and the relevance of the parties’ subsequent conduct.

Costs were awarded as agreed.

The applicant sought production of the deceased’s lawyer’s estate planning file to search for documents that might support a claim under section 21.1 of the Succession Law Reform Act, which allows a court to validate documents as wills even if not properly executed.

The court held that the “wills exception” to solicitor-client privilege does not extend to such fishing expeditions for near-will documents, and that privilege is not waived unless there is evidence of a fixed and final testamentary intention.

The motion for production was dismissed, but other relief was granted on consent.

The appellant appealed a trial judgment setting aside her mother's 2016 will and a related property transfer on the grounds of diminished capacity and undue influence.

The trial judge had found that the appellant exerted undue influence over her mother and failed to rebut the presumption of undue influence regarding the property transfer.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's articulation of the legal principles or her application of those principles to the factual findings, which were fully supported by the record.

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.

The applicant, acting as estate trustee and former attorney for property for her late mother, brought an application to pass accounts.

The objector, her sister, challenged numerous expenses and withdrawals, including a $50,000 alleged gift.

The court found the applicant's fiduciary duties crystallized in March 2016 when a bank power of attorney was signed.

Due to deficient record-keeping and failure to prove the $50,000 gift, the court ordered the applicant to repay $62,500 to the estate.

The applicant was awarded reduced compensation of $6,000 and partial reimbursement for expenses.