COURT OF APPEAL FOR ONTARIO

DATE: 20030616

DOCKET: C37510

RE: JOSEPH MITCHELL (Applicant/Respondent) – and – JOHN MITCHELL (Respondent/Appellant)

BEFORE: WEILER, LASKIN and GOUDGE JJ.A.

COUNSEL: Donald D. W. Lamont for the appellant

Brian P. Pilley for the respondent

HEARD: June 12, 2003

On appeal from the order of Justice Maurice C. Cullity of the Superior Court of Justice dated December 3, 2001.

E N D O R S E M E N T

Released Orally: June 12, 2003

[1] In our opinion the trial judge did not commit any palpable and overriding error with respect to the facts and he applied the law correctly. The trial judge found that the will was not the product of undue influence. The evidence of the solicitor who prepared the will supports that finding. In addition there is no evidence the testator was under any infirmity or illness and a period of ten years elapsed after the will was made.

[2] We would dismiss the appeal. We would direct that the costs of the appeal be paid by the appellant to the estate on a party and party basis to be assessed together with the costs awarded to the appellant for the trial.

“K. M. Weiler J.A.”

“John Laskin J.A.”

“S. T. Goudge J.A.”