Nikhil Rao Mukherjee

Terry Roberts brought a motion for summary judgment to dismiss Michael Cowie's motion and application for directions regarding a will challenge, arguing they were statute-barred under the Limitations Act, 2002.

The court held that a will challenge is not a 'claim' for the purposes of the Act, as probate proceedings are in rem and do not seek to remedy an injury, loss, or damage caused by an act or omission.

The court also found that a notice of objection and a motion for directions are not 'proceedings' under the Act.

The motion for summary judgment was dismissed.

In an estate dispute involving a notice of objection to a small estate application, the moving party sought security for costs against a foreign-resident objector under Rule 56.01.

The court held that the rule did not apply in the original 2021 estate proceeding because the objector was neither a plaintiff nor applicant nor an active claimant within the meaning of the rule.

The court declined to impose security in the later 2024 application proceeding at that stage, given the pending leave motion concerning whether a separate application was required and the unresolved limitations motion.

The motion was dismissed, with no order as to costs.

The Court of Appeal for Ontario dismissed Andrew Miracle’s appeal from a summary judgment awarding his former lawyer $2,858,500 in contingency fees and upholding a solicitor’s lien.

The dispute arose from a business conflict between Miracle and his son over “Smokin’ Joe’s,” resolved by arbitration.

The court found that Miracle’s acquisition of the business constituted a “recovery” under the contingency fee agreement, even though he did not receive a cash award.

The court also upheld the enforceability of the contingency fee agreement and the granting of a common law solicitor’s lien, finding no error in the motion judge’s exercise of discretion.

This decision addresses motions for leave to appeal a costs order issued by the Superior Court of Justice.

Robert Mark Roe, the appellant in the underlying appeal concerning a will challenge, sought leave to appeal the costs award.

Randall Scott Roe, a respondent, brought a cross-motion for leave to appeal the same costs order.

The Court of Appeal dismissed Randall Scott Roe's cross-motion for leave to appeal, finding no error in the application judge's discretionary costs award, which involved a holistic review of the litigation and parties' conduct.

Robert Mark Roe's motion for leave to appeal the costs order was dismissed as abandoned.

No costs were awarded on the motions for leave to appeal.

Robert Mark Roe appealed a lower court decision that upheld his mother's 2005 Will, which disinherited him.

He argued that his mother, Beverly Grace Roe, lacked testamentary capacity due to insane delusions and was unduly influenced by his brother, Rick.

The Court of Appeal affirmed the application judge's findings, concluding that Beverly's beliefs, though at times irrational, had a factual basis, and that she was not unduly influenced.

The court also confirmed that a testator only needs a general understanding of their assets for testamentary capacity.

The appeal was dismissed, and costs were awarded to the respondent Randall Scott Roe.

The moving parties brought a motion for leave to appeal the order of Dietrich J. The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $5,000 to the responding party.

The applicant challenged his mother's Will, which disinherited him, arguing she lacked testamentary capacity, suffered from insane delusions, and was unduly influenced by his brother.

The court found that while the Will was executed under suspicious circumstances, the respondents successfully proved the testator had testamentary capacity and was not operating under insane delusions.

The court held that the testator's reasons for disinheriting the applicant, though perhaps unreasonable or based on misunderstandings, were grounded in actual events and did not amount to insane delusions.

The applicant also failed to prove undue influence.

The application and related action were dismissed.

In a will challenge application, the parties brought cross-motions regarding the appointment of an Estate Trustee During Litigation (ETDL).

The applicants sought to appoint a professional trust company, while the respondent executor named in the impugned will sought to be appointed himself.

The court found that an ETDL was necessary and appointed the respondent executor, noting he had no beneficial interest in the estate, was neutral, and had already been managing the estate's assets.

The court dismissed the applicants' motion to appoint a limited partnership as ETDL, as it was not legally authorized to act in that capacity.

The court also granted directions for an accounting, production of medical records, and interim custody of certain chattels.

At a trial management conference for a will challenge and related gift challenge, the court directed that the two proceedings be tried together to avoid duplicating evidence regarding the deceased's capacity.

The court ordered that evidence in chief be given primarily by affidavit, with limited oral examination, and set a timetable for the exchange of materials and a pre-trial conference.