R. Dean Allison

The parties were unable to settle the terms of a formal Order following a previous decision regarding the administration of an estate.

The principal disagreements related to the compensation allowed for the respondent as Attorney and whether HST was payable.

The court fixed the respondent's compensation at $22,967.39 inclusive of HST, noting that any overpayments already received must be deducted from this amount, and provided directions for costs submissions.

The applicant, a co-estate trustee and the lawyer who drafted the deceased's will, applied to remove the two respondent co-estate trustees (the deceased's sons).

The administration of the estate had stalled for four years due to hostility and lack of cooperation from the respondents, resulting in late tax filing penalties and the estate's main asset (a house) remaining uninsured while the respondents lived there rent-free.

The court found a clear necessity to remove the respondents as estate trustees to protect the estate assets and the welfare of the beneficiaries, particularly a third brother who was a disabled beneficiary of a discretionary trust.

The applicant was appointed as the sole estate trustee.

The appellant appealed a decision finding a secondary will invalid.

The secondary will had previously been rectified nunc pro tunc by another judge due to clerical errors, based on a finding that the testatrix had not read it but that it corresponded with her instructions.

The application judge subsequently found the will invalid based on the finding that it had not been read.

The Court of Appeal allowed the appeal, holding that the application judge's reasoning was circular and undermined the previous rectification order, which implicitly determined the will's validity.

The applicant sought a certificate of appointment as estate trustee for the primary will of the deceased.

A previous court order had rectified the deceased's secondary will, finding that the deceased had not read it.

The court held that it had the inquisitorial jurisdiction to require both wills to be proven in solemn form, despite the lack of a formal objection to the secondary will.

Applying issue estoppel, the court was bound by the previous finding that the deceased did not read or approve the secondary will, rendering it invalid.

The validity of the primary will was ordered to be determined at a short trial.

In an estate dispute involving dual wills and a probate objection, the court considered whether a prior rectification decision foreclosed further inquiry into validity.

The court held that rectification and proof in solemn form are distinct, and that the probate court's inquisitorial jurisdiction permitted it to require both wills to be proven in solemn form, including a secondary will not separately submitted for probate.

Applying issue estoppel, the court treated prior findings that the testatrix neither read nor approved the secondary will as binding.

Because knowledge and approval were absent, the secondary will was declared invalid, while the validity of the primary will was directed to a short trial.