John Edward Shewman Poyser

The appellant, Nancy Johnson, appealed the dismissal of her application to prove her mother's 2015 will in solemn form and sought leave to appeal a costs award.

The Court of Appeal upheld the application judge's decision, finding no error in the application of the Neuberger framework.

The application judge correctly determined that the appellant failed to meet the minimal evidentiary threshold to call into question the will's validity or the testator's capacity, and that the respondents successfully answered any challenge.

The court also affirmed the costs award, reiterating that estate litigation is subject to general costs rules and that the appellant's case did not warrant an exception for costs to be paid from the estate.

The appellant challenged her father's will and an inter vivos transfer of his house to the respondent, alleging undue influence.

The trial judge rejected the claim.

On appeal, the appellant argued that the relationship between the testator and respondent gave rise to a presumption of undue influence that the respondent failed to rebut.

The Court of Appeal dismissed the appeal, holding that the rebuttable presumption of undue influence applies only to inter vivos transactions, not testamentary gifts.

In testamentary matters, the party attacking the will bears the onus of proving undue influence on a balance of probabilities.

Although the trial judge erred in conflating the two tests, this error did not affect the reasonableness of his conclusion that no undue influence occurred, as his findings were firmly rooted in the evidence.