Jasmine Sweatman

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 applicant son brought a motion seeking a capacity assessment of his 89-year-old mother, production of her medical and legal records, the striking of certain affidavits, and a preservation order over her assets, amidst a dispute with his sister over their mother's care and powers of attorney.

The respondent sister and mother brought cross-motions to lift the freeze on the mother's bank accounts and for reimbursement of expenses.

The court dismissed the request for a capacity assessment, finding it unnecessary and intrusive given existing assessments and the lack of urgency.

The court ordered limited production of medical and legal records, finding the applicant met the minimum evidentiary threshold.

The court struck portions of an interpreter's affidavit containing unqualified opinion evidence but left hearsay evidence for the application judge to weigh.

Finally, the court granted a preservation order over the mother's main bank account, while ordering the release of funds to reimburse the sister for care expenses and providing a monthly allowance for the mother's ongoing needs.

The court addressed an application for advice and direction regarding the interpretation of "issue" in a 1977 will, specifically whether a child born outside marriage was entitled to inherit.

The court regretfully concluded that, due to the explicit temporal limitation in section 1(4) of the Succession Law Reform Act (which applied its new presumption of inclusion only to wills made on or after March 31, 1978), the common law presumption (excluding children born outside marriage) applied to the will in question.

Consequently, the grandson born outside marriage was not entitled to a share of the estate.

The plaintiff brought two motions in an ongoing estate dispute against his sisters.

The first motion sought leave to amend his Statement of Claim to further particularize allegations of conversion of estate assets, which was granted on consent.

The second motion sought to lift a stay of proceedings on a related Application to Pass Accounts to allow for an amendment to a Notice of Objection and to have common issues tried together.

The court dismissed the second motion, finding it unnecessary to lift the stay as the trial judge in the main action would decide the common issues, which would be binding on the Application by issue estoppel, and the stay would automatically lift upon the final disposition of the action.