Kelly Anne Charlebois

The applicants challenged the validity of a purported will dated September 10, 2020, allegedly made by Kenneth Ryan Hill, a wealthy status Indian and permanent resident of the Six Nations of the Grand River Reserve.

The will named the respondent, Mr. Hill's son, as executor and left his interest in Grand River Enterprises (worth approximately $38 million) to him, with bequests of $5 million to each of his other children (except two who received nothing or $3 million).

The applicants argued that Mr. Hill did not sign the will and did not know and approve of its contents.

The court found that the respondent failed to establish that Mr. Hill signed the purported will and that suspicious circumstances surrounded its execution.

The court also found that the respondent failed to prove that Mr. Hill knew and approved of the will's contents.

The purported will was declared invalid both under the Indian Act and at common law.

The appellants challenged the validity of their deceased father's 2021 will and an inter vivos property transfer, alleging lack of testamentary capacity and undue influence by the respondents.

The application judge dismissed their motion for directions, finding they failed to meet the minimal evidentiary threshold under Rule 75.06.

The Court of Appeal upheld this decision, finding no palpable and overriding errors in the application judge's assessment of the evidence regarding capacity or undue influence, nor in his treatment of the evidence or sufficiency of reasons for dismissing the challenge to the property transfer.

The Estate Trustee of Nazzareno Coccia's estate sought the court's advice and direction regarding the interpretation of the deceased's Ontario Will and its effect on a prior Italian Will, particularly concerning real property in Italy.

The court determined that the Ontario Will, containing a revocation clause, effectively revoked the Italian Will.

Furthermore, the court found that the Ontario Will created a partial intestacy regarding the Italian real property, as the term "money" in the will could not be broadly construed to include land.

Consequently, the Italian real property passed to the deceased's nieces (next of kin) under Italian intestate succession law, as directed by conflict of law principles (lex situs).

The Trustee of the Alexander Morris Sharpe Trust sought the court's advice and directions on whether legal fees for David and Natasha Sharpe could be paid from the trust, which was established for the "sole and exclusive" benefit of their minor son, Alexander Morris Sharpe.

The Office of the Children's Lawyer opposed, arguing the trust language was clear and restrictive.

The court ruled that the trust funds could not be used to pay the legal fees, as such payments would not be for the "sole and exclusive" benefit of the minor beneficiary, even if there was a collateral benefit.

In a will challenge and dependants' support proceeding, the moving parties sought production of financial records from Grand River Enterprises Six Nations Ltd. (GRE), a third-party corporation in which the deceased held a 12.5% interest, and leave to examine two non-parties regarding the deceased's will.

The court granted both motions, finding that the financial records were relevant to valuing the estate and assessing the testamentary sense of the will, and that the non-parties possessed relevant information not obtainable elsewhere.

The Estate Trustee brought an application to obtain possession of a property from the deceased's daughter, who had a right to reside there rent-free for eight years under the will.

The eight-year period expired, but the daughter refused to vacate, claiming compensation from the Estate for caregiving services and challenging the will's validity, though she had not initiated any formal court process for these claims.

The court granted the Estate Trustee's application, declaring the Estate Trustee entitled to sole possession and ordering the daughter to vacate the property.

The court also awarded costs, with a portion payable by the daughter and the remainder from the Estate.

The appellants, trustees of the Estate of Vincent Di Santo and the Vincent Di Santo 2003 Family Trust, appealed an order that permanently removed them and appointed CIBC Trust Corporation as replacement.

The original order also granted further interim funding to the respondent, Ottavio Di Santo.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's decision that permanent removal was sought and necessary.

The court upheld the motion judge's finding that the trustees' mindset had become intractable, they were in a position of conflict, acted unilaterally, or could not objectively exercise their discretion, thus meeting the high threshold of "clear necessity" for trustee removal.

The moving party sought leave to appeal an order of Dietrich J. The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the Office of the Children's Lawyer and $5,000 to the responding estate trustees.

The applicants sought the appointment of an Inspector to investigate the management and affairs of two companies, Morris Kerbel Holdings Limited and Paladium Construction Limited, alleging oppressive and unfairly prejudicial conduct by the respondents under the Ontario Business Corporations Act.

The court dismissed the applications, finding that the applicants had not met the second and third parts of the three-part test for appointing an inspector, specifically regarding the necessity and appropriateness of such an extraordinary remedy given that information could be obtained through ordinary litigation tools like an oppression proceeding.

The court also noted concerns about the broad scope, unknown costs, and lack of company resources to fund the investigation.

This application concerned whether an "Aviva Bond" valued at $123,558.64 formed part of a deceased's estate or was a gratuitous inter vivos gift to two of her daughters.

The applicant, one of the deceased's four daughters and a co-estate trustee, sought a declaration that the bond was an estate asset and an order for its repayment.

The respondents, including the two daughters who received the bond, argued it was a gift.

The court found strong evidence that the deceased intended the bond as a gift, thereby rebutting any presumption of resulting trust.

The application was dismissed, and costs were awarded against the applicant, with a blended cost order for the responding estate trustee.

The Court of Appeal heard three motions related to an ongoing appeal concerning the removal and replacement of estate and family trust trustees.

The Appellants (original trustees) sought a stay of the order removing them and appointing CIBC Trust Corporation.

The Respondent (Ottavio Di Santo) sought to lift a stay on a costs order and to quash or stay the Appellants' appeal.

The court granted the Appellants' stay motion, finding a serious issue, irreparable harm, and balance of convenience in their favour.

The Respondent's motions to lift the costs stay and to quash/stay the appeal were dismissed.

Costs were ordered payable from the Estate.

The applicants, disinherited daughters of the deceased, brought a motion for the appointment of a neutral professional Estate Trustee During Litigation (ETDL) to manage their father's substantial estate during a will challenge.

The named estate trustees (the deceased's second wife and business associates), who were also respondents and potential witnesses in the will challenge, sought to be appointed as ETDL themselves, arguing their unique knowledge of the deceased's business.

The court found that a neutral professional ETDL was warranted given the acrimony between the parties, the estate trustees' inevitable role as witnesses, and the significant value of the estate, dismissing the estate trustees' request to appoint themselves.

The applicant ex-spouse sought a declaration for the proceeds of the deceased's Locked-in Retirement Account (LIRA) based on a 1997 beneficiary designation.

The respondent estate and parents opposed, relying on a 2001 designation changing the beneficiary to the parents, of which only a photocopy could be found, and a 2005 final matrimonial release.

The court dismissed the application, finding the 2001 photocopy was a valid instrument under the Succession Law Reform Act that revoked the 1997 designation.

Furthermore, the 2005 matrimonial settlement and release precluded the applicant's claim, and awarding her the LIRA would result in unjust enrichment.

The moving party, executor of an estate in Saskatchewan, brought a motion to stay or dismiss an application in Ontario regarding a Locked-in Retirement Account (LIRA) on the basis of jurisdiction.

The responding party, the deceased's former spouse residing in Ontario, sought a declaration that she was the designated beneficiary of the LIRA held by CIBC.

The court applied the Van Breda test and found that Ontario had jurisdiction simpliciter because the contract was located in Ontario, the executor lived in Ontario, and CIBC's head office was in Ontario.

The court also declined to find that Saskatchewan was a more appropriate forum, dismissing the motion and awarding costs to the responding party.

The plaintiff sought costs after successfully opposing the defendants' motion to set aside or discharge a certificate of pending litigation.

The court had previously found that the plaintiff failed to make full and frank disclosure on the original ex parte motion for the certificate, but that the certificate would have been granted anyway.

The defendants argued against costs due to the disclosure failure.

The court reserved costs of the motion to the trial judge, citing divided success on the motion (plaintiff won on substantive issue, defendants won on disclosure finding), the reasonableness of the defendants' motion, the early stage of the action, and the potential for litigation conduct to be a factor at trial.

Following a motion for interim support where the applicant was ordered to pay costs in the cause, the respondent Estate Trustee sought to vary the costs order based on a previously undisclosed offer to settle.

The court found the offer was more favourable to the applicant than the motion's outcome.

The court amended the costs order, directing that the $40,000 in partial indemnity costs be payable by the applicant in any event of the cause at the conclusion of the application.

The applicant, the common-law spouse of the deceased, brought a motion for interim support under the Succession Law Reform Act pending the final determination of her dependant's support application.

The deceased was a wealthy real estate developer who left his entire estate to his estranged wife and daughters.

The court rejected the applicant's budget of over $93,000 per month as unsubstantiated and overstated, instead awarding $30,000 per month in interim support.

The court dismissed the applicant's requests for interim legal fees, HST indemnification, and production of the deceased's estate planning files.

The court also granted the estate's cross-motion in part, imposing restrictions on the applicant's use of the estate-owned condominium, including a 15-person guest limit and a ban on posting interior photos on social media.

The appellant, a grandchild of the deceased, appealed the dismissal of her application to remove the named executors and trustees of the deceased's estate.

The executors were the deceased's two sons.

The appellant claimed the executors would not treat her fairly and had breached their fiduciary duties.

The Court of Appeal dismissed the appeal, finding no evidence supporting the appellant's claims.

The court noted that the key property at issue had been sold, the executors had honored the deceased's non-binding request regarding the cottage, and the mere existence of friction between the executors and the appellant's mother did not justify removal.

The deceased was aware of existing tensions but nonetheless named the respondents as executors.

Following a motion regarding the appointment of an estate trustee during litigation and the production of records, the court issued a costs endorsement.

The court noted that both parties took inflexible positions and failed to make offers to settle.

Because success on the motion was divided, the court declined to order costs to either party and encouraged future negotiation and mediation.

This endorsement addresses the issue of costs following an unsuccessful application by the applicant to remove the respondents as estate trustees and a related motion for leave to introduce additional affidavits.

The respondents sought costs on a full indemnity basis, arguing the applicant pursued personal interests and made unfounded allegations.

The applicant argued for partial indemnity costs, denying egregious conduct and challenging the quantum.

The court, applying public policy considerations in estate litigation, found the applicant's actions undermined the testator's choice of trustees and proper estate administration.

Substantial indemnity costs were awarded to the respondents for both the application and the motion, to be paid personally by the applicant.