Justin de Vries

Following a successful appeal and dismissal of a cross-appeal, the parties agreed that the appellants were entitled to costs throughout and agreed on the quantum for the application.

The Court of Appeal ordered the respondent to pay $105,000 in partial indemnity costs for the application and $70,000 in partial indemnity costs for the appeal, payable within 60 days.

The appellants sought to enforce a Property Partnership Agreement granting them an option to purchase a residential property from the respondent, their mother.

The application judge declared the Agreement unenforceable on the basis that it contained an incomplete essential term regarding distribution of excess sale proceeds, and further found undue influence, breach of fiduciary duty, and unconscionability.

The Court of Appeal allowed the appeal, holding that the incomplete term was non-essential and severable, that no presumption of undue influence arose given the respondent's capacity and the specific nature of the relationship, that independent legal advice was received before the Agreement was signed, and that the unconscionability analysis failed to meet the threshold established in Uber Technologies Inc. v. Heller.

The cross-appeal was dismissed as moot.

The moving party, claiming to be the common-law spouse of the deceased, sought the appointment of an Estate Trustee During Litigation (ETDL), arguing the current estate trustee was in a conflict of interest by opposing her claims.

The estate trustee brought a cross-motion to evict the moving party from the deceased's property and to sell it, citing the estate's financial deficit and required repairs.

The court dismissed the motion for an ETDL, finding the estate trustee's opposition to a creditor's claim did not require a neutral trustee.

The court granted the cross-motion, ordering the moving party to vacate the property and authorizing its sale, noting the moving party had suitable alternative accommodation and her claims against the estate would not be prejudiced.

The appellants, estate trustees of Dr. Zachariadis, appealed a summary judgment dismissing their claim to recover a $700,000 payment made by the deceased to his romantic partner, Ms. Giannopoulos, alleging breach of trust, fraud, conversion, and unjust enrichment.

The motion judge found the payment was a valid gift and the action was statute-barred.

The Court of Appeal upheld the motion judge's decision, finding no error in denying an adjournment for further examinations, confirming the payment was a gift despite alleged suspicious circumstances, and agreeing that the action was statute-barred under the Trustee Act's strict limitation period, with the doctrine of fraudulent concealment not applying.

The appeal regarding costs was also dismissed, upholding the substantial indemnity award against the estate and trustees personally.

An appeal from a motion judge's order rectifying a will to correct a drafting error.

The estate trustee sought to correct the will to reflect the deceased's intention to liquidate sufficient shares to provide two children with $1 million each.

The widow, who did not challenge the will and elected to take under it, appealed the rectification order and sought leave to appeal the costs disposition.

The Court of Appeal upheld the motion judge's decision, finding no error in principle and that the factual findings were amply supported by evidence.

Leave to appeal costs was denied.

In an ongoing estate litigation spanning over 20 years, the trustees of the defendant estate became deadlocked.

One trustee refused to approve a settlement or the payment of professional fees, asserting his own interests as a beneficiary and threatening litigation against his co-trustees.

The co-trustees moved to remove him as a trustee and for court approval of estate expenses paid from property sale proceeds.

The court granted the motion to remove the dissenting trustee, finding he was no longer acting in the interests of the estate.

The court also exercised its inherent jurisdiction to break the deadlock and approve the payment of reasonable estate expenses, without prejudice to the removed trustee's right to challenge the payments at a future passing of accounts.