Kimberly A. Whaley

Following the dismissal of an application challenging a will based on testamentary capacity, the court determined costs.

The applicant argued that public policy considerations in estate litigation justified having her costs paid by the estate.

The court rejected this argument, finding the applicant's concerns about capacity were unfounded and her disinheritance was rational.

The applicant was ordered to pay the successful respondent's costs on a partial indemnity basis, with any shortfall to be indemnified by the estate.

The applicant sought disclosure of medical and legal records relating to her late mother's estate, alleging suspicious circumstances and lack of capacity surrounding a 2015 will that disinherited her.

The executor provided evidence that the mother changed her will after discovering the applicant had improperly transferred joint investment accounts while acting as her attorney for property.

The court dismissed the application, finding the applicant failed to meet the minimal evidentiary threshold required to put the estate to the burden of proving the will in solemn form.

Following a trial regarding the validity of codicils to a will, the court determined the allocation and quantum of costs.

The Objectors, who unsuccessfully challenged the codicils on grounds of testamentary capacity and undue influence, argued that costs should be paid out of the estate.

The court applied a blended costs approach, ordering the Objectors to pay the successful parties' costs incurred after a second mediation, at which point the Objectors should have reassessed their position.

The court also significantly reduced the costs claimed by some of the successful parties due to duplication of effort and excessive docketing.

The appellants challenged the validity of the testator's 2010 wills on the basis of lack of testamentary capacity and undue influence.

The respondents successfully moved to dismiss the challenges on the basis that they were barred by the equitable doctrines of estoppel by representation and estoppel by convention.

The Court of Appeal allowed the appeal, holding that the equitable doctrines of estoppel do not apply to bar a challenge to the validity of a will.

The Court also held that an interested person does not have an automatic right under rule 75.01 of the Rules of Civil Procedure to require that a will be proved in solemn form, as the court retains discretion over whether and how a testamentary instrument is proved.

Competing motions arose regarding funding the care of an incapable elderly woman under the Substitute Decisions Act.

One child sought to increase a line of credit secured against the incapable person’s Toronto condominium to fund ongoing care, while other siblings sought an order to sell a Florida condominium allegedly jointly owned with one sibling.

The court held that the urgent need to maintain care justified extending the line of credit, while disputes concerning ownership, expenses, occupation rent, and tax consequences relating to the Florida property required further evidentiary determination.

A bifurcated hearing was ordered to resolve those issues before determining whether the Florida property should be sold.

Following an earlier order granting comprehensive directions concerning the administration of two related estates, the applicants sought costs.

The applicants had successfully obtained an order requiring, among other things, preservation of estate assets and directions relating to the administration of the estates and the conduct of attorneys acting under a power of attorney.

The court found that the responding estate trustees had taken unreasonable positions by refusing to provide an informal accounting and declining reasonable settlement efforts.

Applying the principles of proportionality and reasonableness under Rule 57.01, the court awarded full indemnity costs to the applicants.

Costs were ordered partly against the respondent trustees personally and partly payable from the capital of one of the estates.

The applicants brought a motion for an Order for Directions regarding the estates of Enrico and Ida Carfagnini.

They sought to consolidate the two actions, obtain a preservation order, compel the passing of accounts by Ida's attorneys for property, and order the disclosure of third-party solicitor and financial records.

The respondents opposed the consolidation and the preservation order for Enrico's estate.

The court granted the applicants' motion, ordering the consolidation of the actions, a preservation order for both estates, the passing of accounts, and the requested disclosure, finding that the issues in both estates were intertwined and raised significant concerns.