Ian M. Hull

Gail Evans died intestate in 1992, survived by her husband, Carlton Fray (respondent), and two sons, Richard Evans (applicant) and Donald.

Gail held a 90% interest in a house as a tenant in common with Fray (10%).

Fray continued to live in the house, paying expenses.

The Court of Appeal previously directed a reference to determine the residue of the estate and the quantum of Richard Evans' share.

This decision on reference found that Gail's 90% interest vested equally in Fray and her two sons in 1995 by operation of the Estates Administration Act, resulting in Fray owning 40% and each son 30%.

The court determined that the estate's residue was zero as of the vesting date.

It ordered the house to be sold, with Fray receiving credits for mortgage, insurance, property taxes, and capital expenditures made since 1995, as well as his $75,000 preferential share.

Fray's claim for monthly living expenses was offset by a notional occupation rent for his exclusive use of the sons' 60% share of the property, effectively cancelling each other out.

The remaining proceeds are to be divided equally among the three, with prior payments from Fray to the sons deducted from their respective shares.

The plaintiffs challenged the validity of Constantin Birtzu's 2006 will, alleging lack of testamentary capacity and undue influence by his daughter, Constance McCron, who was the sole beneficiary.

They also sought a constructive trust over property and an accounting of assets.

The court found the action statute-barred due to the expiration of the limitation period.

Despite this, the court proceeded to address the merits, finding that the defendants successfully proved testamentary capacity and that the plaintiffs failed to prove undue influence.

The court upheld the 2006 will and dismissed the action.

This costs endorsement followed a judgment where two wills were declared invalid, resulting in an intestacy where the plaintiff, Star Sweetnam, inherited the entire estate.

Sweetnam sought substantial indemnity costs, while the defendant estate trustees, Dianne Lesage and Terry Dooley, sought their own costs from the estate.

The court applied the modern "loser pays" principle in estate litigation, finding that the estate trustees acted unreasonably by rejecting two settlement offers from Sweetnam, particularly an early, modest offer.

The court also found Lesage's conduct adversarial and her claimed costs excessive.

Sweetnam's costs were fixed at $311,679.56 (after a 20% reduction for time spent on moot issues).

The court ordered Lesage and Dooley to pay Sweetnam's costs jointly and severally and denied their claims for costs from the estate, preventing Sweetnam from effectively paying the unsuccessful parties' costs.

The plaintiff challenged the validity of two wills executed by her late father shortly after he was diagnosed with a terminal brain tumour.

The wills entirely disinherited the plaintiff and her children.

The court found that the testator lacked testamentary capacity when he executed both wills, as his cognitive functions were impaired by the tumour, poorly managed diabetes, and various medications, leading to insane delusions that affected his testamentary dispositions.

The wills were declared invalid.

The plaintiff's alternative claims for undue influence, proprietary estoppel, and dependant support under the Succession Law Reform Act were dismissed.

Following a four-day trial where the applicant was awarded a $450,000 lump sum from the estate, the court determined the issue of costs.

The applicant sought full or substantial indemnity costs, arguing the estate trustees' conduct was unreasonable.

The court found the respondents' conduct was aggressive but not reprehensible, and since the applicant had withdrawn all offers to settle before trial, partial indemnity costs were appropriate.

The court fixed fees at $125,000 and reduced the claimed disbursements, noting the expert's account was excessive, resulting in a total costs award of $125,000 for fees and $35,387.20 for disbursements, plus HST.

A common law spouse brought an application under Part V of the Succession Law Reform Act seeking dependant support from the estate of her deceased partner after his will left the estate entirely to his daughters.

The court determined that the applicant was a dependant spouse within the meaning of s. 57 and that the deceased had not made adequate provision for her proper support under s. 58.

Applying the factors in s. 62, including the parties’ 20‑year cohabiting relationship, the applicant’s age, health issues, limited retirement income, and contributions to the deceased’s household, the court found that she required significant support.

Evidence also established that the deceased intended that his RRSP/RRIF funds would benefit the applicant.

The court concluded that a lump sum payment representing the approximate value of those funds would provide fair and adequate support while allowing the applicant financial independence.

Competing motions arose in estate litigation challenging the validity of a deceased's remarriage and seeking declarations affecting the validity of a prior will.

The plaintiffs sought to amend the statement of claim to abandon damages and pursue declaratory relief, add the estate as a defendant, replace the litigation guardian, obtain disclosure of medical and capacity records, and adjust the timetable.

The defendants opposed and moved for security for costs, arguing the litigation guardian had relocated outside Ontario and that substitution of another guardian was an attempt to avoid security obligations.

The court granted leave to amend the claim and add the estate, but imposed terms including payment of costs thrown away and substantial security for costs.

Security for costs of $100,000 and additional security for wasted costs were ordered before further steps could be taken.

The applicant and the deceased lived together as common-law spouses for 12 years.

The deceased, a wealthy car dealership owner, executed new wills shortly before her death that left her entire estate to her daughter and various trusts, making no provision for the applicant.

The applicant brought a claim for dependant's relief under the Succession Law Reform Act.

The court found that the deceased failed to make adequate provision for the applicant's proper support, noting her legal and moral obligations to him.

The court ordered the transfer of a $1.2 million home to the applicant, a tax-free capital payment of $100,000 per year for life, and $50,000 every five years for a vehicle.

The moving party, a local resident, brought a motion for leave to intervene as an added party or friend of the court in an application concerning the sale of a charitable property operated as a tennis and aquatic club.

The main parties to the application had reached a settlement to sell the property and divide the proceeds among charitable purposes.

The court dismissed the motion to intervene, finding that while the moving party had an interest in the subject matter, her intervention would not significantly enhance the court's ability to determine the issues, as her position mirrored that of the applicants and the Public Guardian and Trustee was already involved.

Furthermore, granting intervenor status would cause undue delay and prejudice to the parties who had already reached a settlement.