Julia Munk

Application to dismiss a Notice of Objection filed by the respondent against the issuance of a Certificate of Appointment of Estate Trustee with a Will to the applicant.

The deceased executed a will in September 2022 naming the applicant as executor and trustee.

The respondent, the deceased's daughter, filed a vague Notice of Objection without supporting evidence.

The applicant brought an application for directions to dismiss the objection.

The respondent failed to deliver a Responding Record and did not appear at the hearing.

The court found that the applicant discharged her burden of proof regarding due execution, knowledge and approval, and testamentary capacity.

The respondent failed to meet the minimal evidentiary threshold required to challenge the will.

The Notice of Objection was dismissed, the Certificate was ordered to be issued, and costs were awarded to the applicant to be paid from the respondent's distributive share.

The applicant son brought a motion within a guardianship application to determine his 91-year-old father's capacity to instruct counsel, and to enforce previous orders regarding financial disclosure and access visits.

The father, who suffers from aphasia, had been assessed by multiple capacity assessors.

The court found the father had capacity to instruct counsel regarding his personal care and residence, but lacked capacity to instruct on property matters due to his inability to understand a disputed $280,000 mortgage.

The court directed the Public Guardian and Trustee to arrange section 3 counsel for the father, ordered the respondent siblings to provide the long-overdue accounting, and enforced the applicant's access visits, awarding substantial indemnity costs against the respondent siblings for their reprehensible conduct in delaying the proceedings.