Jonathan M. Friedman

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 plaintiff brought an action for payment on a promissory note, damages for fraud, and to set aside a transfer of a matrimonial home as a fraudulent conveyance, following the defendant's criminal conviction for fraud related to the same loan.

Both parties moved for summary judgment.

The court dismissed both motions, finding that genuine issues requiring a trial existed regarding the assessment of damages, the credibility of the defendant's explanation for the property transfer, and whether the limitation periods had expired or were extended by restitution payments and the ongoing criminal proceedings.

The applicant sought an order for directions to challenge his late mother's will, alleging undue influence and lack of capacity by his brother, the primary caregiver and sole residuary beneficiary.

The court initially declined to sign the consent order, questioning whether the applicant had met the 'minimal evidentiary threshold' required by Neuberger v. York to justify the expense and delay of a formal will challenge.

After hearing arguments, the court granted the order, heavily weighing the respondent's consent and a negotiated term that the applicant would personally fund the investigative steps, which satisfied the goals of proportionality and affordability.