Kenneth W. Garland

The appellant appealed the trial judge's dismissal of her action seeking to invalidate two wills of her great-aunt on grounds of lack of testamentary capacity, lack of knowledge and approval of contents, and undue influence.

The appellant contended that the trial judge misapprehended the medical evidence regarding testamentary capacity and failed to distinguish between capacity to manage property and testamentary capacity.

The Court of Appeal upheld the trial judge's findings, holding that the appellant failed to establish special circumstances to rebut the presumption of testamentary capacity and that the trial judge's conclusion was fully supported by the evidence.

The plaintiff, Lorilee Ali, challenged the validity of Florence Louisa Blackburn's 2003 and 2000 Wills, alleging lack of testamentary capacity, lack of knowledge and approval, and undue influence.

The court found no suspicious circumstances regarding the preparation of the 2003 Will or undue influence.

While concerns about Florence's capacity were raised, the court determined that her belief that money was stolen by the plaintiff was a rational conclusion given the circumstances and her memory loss, not a delusion affecting testamentary capacity.

The court was satisfied that Florence possessed the requisite capacity and knowledge and approval for the 2003 Will.

Following competing family law motions regarding interim spousal support, business valuation, and control of corporate bank accounts, the court addressed the issue of costs.

The applicant had partial success, obtaining interim spousal support and an order for a business valuation, while the respondent succeeded on the issue of exclusive control of the business bank account.

Applying Rules 18 and 24 of the Family Law Rules and the principle that costs should be fair and reasonable rather than strictly mathematical, the court determined that the applicant was the overall successful party.

However, the amount sought was excessive and there had been divided success.

Costs were therefore fixed at a reduced amount.

The responding parent brought a motion to vary an existing parenting order to obtain equal parenting time with the parties’ children.

The other parent opposed the motion on the basis that no material change in circumstances had occurred and that the proposed arrangement was not in the children’s best interests.

The court held that the evidence largely repeated the material filed on the original motion and did not establish a material change affecting the children.

The moving parent had also failed to exercise a number of scheduled access visits under the existing order.

The court concluded that the motion amounted to a thinly disguised appeal of the prior order and dismissed the motion to change, leaving the issue of equal parenting time to be determined at the upcoming trial.

Following a motion concerning the appropriate income to be used in calculating child support, both parties sought costs.

The dispute arose from the payor’s claim that his present income had decreased and should be used instead of prior income, which would have produced significant arrears.

The court accepted the payor’s position on a temporary basis pending a further review of child support.

Although the issue was important and the argument somewhat novel, the payor was successful on the interim motion.

The court therefore awarded the successful party partial costs reflecting the short duration and limited scope of the motion.

On an interim family law motion, the court addressed issues of spousal support, child support, corporate control, property taxes, and sale of the matrimonial home following separation.

The respondent sought imputation of income to the applicant and the sale of the matrimonial home, while the applicant sought support at the high range of the Spousal Support Advisory Guidelines and joint signing authority over a jointly owned company.

The court declined to order the sale of the matrimonial home, finding the request premature given unresolved equalization issues and the presence of other assets.

The court set interim child and spousal support based on the respondent’s income and declined to impute income to the applicant while she pursued education to become self-supporting.

The applicant was granted joint signing authority on the company accounts.