Ms. A. Colquhoun

The applicants challenged their deceased father's wills on grounds of lack of testamentary capacity and undue influence by the respondent (their sister).

They also sought disclosure of medical records.

The respondent moved for dismissal of the application.

The court dismissed the applicants' motion for medical record disclosure, finding it an intrusion on privacy and a "fishing expedition." The court also dismissed the challenge based on testamentary capacity, finding the solicitor's file provided sufficient evidence of capacity.

However, the court found that the applicants met a minimal evidentiary threshold to question the wills' validity on the ground of undue influence, allowing that claim to proceed to a determination under Rule 75.06.

The court rendered an endorsement on costs following a successful motion by the Estate to set aside an ex parte order for a certificate of pending litigation obtained by the plaintiff.

The plaintiff had obtained the certificate without notice to the Estate, despite the Estate being represented, and without full disclosure of relevant facts, such as the property having already been sold.

The Estate sought partial indemnity costs after the plaintiff consented to setting aside the order.

The court found that while Rule 42.01(3) permits ex parte motions for certificates of pending litigation, professional courtesy and the adversarial system require notice when counsel is on the record, and full disclosure to the court.

The court fixed costs at $2,500.00 in favour of the Estate, payable by the plaintiff.

This endorsement addresses the costs arising from the respondents' unsuccessful motion to dismiss an application.

The applicant sought substantial indemnity costs, citing delays caused by the respondents.

The court declined to award substantial indemnity, finding the conduct did not meet the threshold for reprehensible behavior.

Instead, the court fixed partial indemnity costs at $3,000, inclusive, payable by the respondents to the applicant, including costs for a necessary case conference.

The moving parties (respondents in the main application) brought a motion to strike out the responding party's application, arguing that the dispute over the interpretation of a business sale agreement should proceed by way of an action rather than an application.

The underlying dispute involved the location of a fourth sewage site to be developed under the contract.

The court dismissed the motion to strike, finding that the application framework under Rule 14.05(3)(d) was appropriate for contractual interpretation, even if some factual context was required, and that it was not plain and obvious that the application could not succeed.