E. Neuberger in Her Capacity as the Named Estate Trustee of the Primary Will of C. Neuberger and in Capacity as the Named Estate Trustee of the Secondary Will of C. Neuberger v. York et al.

[Indexed as: Neuberger Estate v. York]

Ontario Reports

Court of Appeal for Ontario,

Gillese, van Rensburg and B.W. Miller JJ.A.

March 8, 2016

129 O.R. (3d) 721 | 2016 ONCA 191

Case Summary

Wills and estates — Estate administration — Probate — Interested person not having automatic right under rule 75.01 of Rules to require that will be proved in solemn form — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 75.01.

Wills and estates — Wills — Validity — Equitable doctrines of estoppel by representation and representation by conduct not applying to challenges to validity of wills.

E and M were the testator's daughters and were named as co-estate trustees in two sets of wills, made in 2002 and 2010. Both sets of wills left the testator's estate to E and M and their children. The testator died in 2010. E took a number of steps in her capacity as estate trustee of the 2010 wills, but few of the key aspects of administration of the estate had been undertaken, and no distributions had been made out of the estate. E brought an application in her personal capacity challenging the validity of the 2010 wills on the basis of undue influence and lack of testamentary capacity. Her son A subsequently brought a motion for directions within E's application in which he sought to be joined as an applicant and also challenged the validity of the 2010 wills. M moved successfully to dismiss the wills challenges on the basis that the challenges were barred by the equitable doctrines of estoppel by representation and representation by convention. The motion judge also found that A was barred from seeking proof of the 2010 wills in solemn form because he was a "straw man" for E. E and A appealed.

Held, the appeal should be allowed.

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. When rules 75.01 and 75.06 are read together, the court has a discretion whether to order that a testamentary instrument be proved as well as a discretion over the manner in which the instrument is proved. An applicant or moving party under rule 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant or moving party fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved. In determining the manner in which the instrument be proved, the court would have recourse to the powers under rule 75.06(3). If and when E proceeded with her personal application or A proceeded with his motion for directions, it would be for the court hearing the matter to decide whether to order that the 2010 wills be proved and, if so, to direct the manner in which they were to be proved. [page722]

The equitable doctrines of estoppel by representation and estoppel by convention do not lie to bar a challenge to the validity of a will. The motion judge erred in finding a jurisprudential basis for the application of the doctrine of estoppel to matters involving the validity of a will. Moreover, the use of estoppel in such matters is antithetical to the policy considerations which govern probate.

The motion judge erred in finding that A was a "straw man". A's evidence was that he made an independent decision to commence his wills challenge, and E's evidence was that she did not want her children to be involved in this acrimonious litigation. That evidence was not disturbed on cross-examination. Pursuant to rule 75.06, A had the right to bring his motion within E's personal application and ask that the 2010 will be proved in solemn form. He did not have to have direct or first-hand knowledge of the matters raised by E in her wills challenge to exercise that right.

Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co., [1970] S.C.R. 932, [1970] S.C.J. No. 48, 12 D.L.R. (3d) 247, 74 W.W.R. 356; Chappus Estate (Re), [2009] O.J. No. 1335, 2009 ONCA 279, 46 E.T.R. (3d) 186, 177 A.C.W.S. (3d) 579; Leibel v. Lewis, [2014] O.J. No. 3745, 2014 ONSC 4516, 2 E.T.R. (4th) 268, 244 A.C.W.S. (3d) 255 (S.C.J.); Otis v. Otis, [2004] O.J. No. 1732, 7 E.T.R. (3d) 221, 130 A.C.W.S. (3d) 1072 (S.C.J.); Ryan v. Moore, [2005] 2 S.C.R. 53, [2005] S.C.J. No. 38, 2005 SCC 38, 254 D.L.R. (4th) 1, 334 N.R. 355, J.E. 2005-1188, 247 Nfld. & P.E.I.R. 286, [2005] R.R.A. 694, 25 C.C.L.I. (4th) 1, 32 C.C.L.T. (3d) 1, 18 E.T.R. (3d) 163, 139 A.C.W.S. (3d) 1089; Smith Estate v. Rotstein (2011), 106 O.R. (3d) 161, [2011] O.J. No. 3075, 2011 ONCA 491, 281 O.A.C. 30, 336 D.L.R. (4th) 112, 68 E.T.R. (3d) 182, 203 A.C.W.S. (3d) 898, affg [2010] O.J. No. 1527, 2010 ONSC 2117, 56 E.T.R. (3d) 216, 187 A.C.W.S. (3d) 900 (S.C.J.) [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 441]; Vout v. Hay, [1995] 2 S.C.R. 876, [1995] S.C.J. No. 58, 125 D.L.R. (4th) 431, 183 N.R. 1, J.E. 95-1367, 82 O.A.C. 161, 7 E.T.R. (2d) 209, 55 A.C.W.S. (3d) 1101, consd

Other cases referred to

Neuberger Estate v. York, [2014] O.J. No. 5605, 2014 ONSC 6706, 6 E.T.R. (4th) 218, 248 A.C.W.S. (3d) 103 (S.C.J.); Oestreich v. Brunnhuber, [2001] O.J. No. 338, [2001] O.T.C. 56, 38 E.T.R. (2d) 82, 102 A.C.W.S. (3d) 1025 (S.C.J.); Stefanik v. Stefanik, [2000] O.J. No. 3279, 99 A.C.W.S. (3d) 524 (S.C.J.); Trotter v. Trotter (2014), 122 O.R. (3d) 625, [2014] O.J. No. 5647, 2014 ONCA 841, 2 E.T.R. (4th) 1, 328 O.A.C. 167, 247 A.C.W.S. (3d) 320

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.]

Survival of Actions Act, R.S.N.L. 1990, c. S-32 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 74, 75, 75.01, 75.04, 75.05, 75.06, (1), (3), (3.1)

Authorities referred to

Hull, R., and I. Hull, Macdonell, Sheard and Hull on Probate Practice, 4th ed. (Scarborough, Ont.: Carswell, 1996)

Waddams, S., Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (Cambridge: Cambridge University Press, 2003) [page723]

APPEAL from the judgment of Greer J., [2014] O.J. No. 5605, 2014 ONSC 6706 (S.C.J.) dismissing the challenges to the validity of the wills.

Chris G. Paliare, Megan E. Shortreed and Jean-Claude Killey, for appellant Edie Neuberger.

Kimberly A. Whaley, Benjamin Arkin and Arieh A. Bloom, for appellant Adam Jesin-Neuberger.

Guy Pratte, Aaron Blumenfeld and Ewa Krajewska, for respondent Myra York in all capacities.

Clare E. Burns and Bianca La Neve, for respondents Sonny York, Laura York and Spencer York.

The judgment of the court was delivered by

[1] GILLESE J.A.: — Rule 75 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194[^1] governs contentious estate proceedings. Rule 75.01 empowers an estate trustee or interested person to make an application to have a testamentary instrument proved "in such manner as the court directs". It reads as follows:

75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.

[2] Does rule 75.01 give an interested person an automatic right to have a will proved in solemn form? Does estoppel lie to prevent an interested person from pursuing a challenge to the validity of a will pursuant to Rule 75? How do the policy considerations which inform the law of probate impact on these questions? These appeals depend upon the answers to those questions.

I. Overview

[3] Chaim and Sarah Neuberger had two daughters, Edie and Myra.[^2] Mr. Neuberger's long-standing intention was to provide for his daughters equally, on his death.

[4] Edie (Neuberger) is married to Norman Jesin. They have five adult children, one of whom is Adam Jesin-Neuberger. [page724]

[5] Myra (York) is married to Joel York. They have three adult children. I will refer to Myra and her children together as the "York parties" or the "respondents".

[6] Mr. Neuberger died on September 25, 2012, at age 86. His wife predeceased him. He left a real estate empire estimated to be worth well over $100 million. Mr. Neuberger is survived by his two daughters and their adult children. None of his grandchildren have children of their own yet.

[7] Mr. Neuberger executed primary and secondary wills in 2004 (the "2004 wills") and again in 2010 (the "2010 wills"). Although both sets of wills leave his estate to his two daughters and their children, they differ in one significant way, which allegedly results in Myra's share exceeding Edie's by approximately $13 million.

[8] In both sets of wills, Edie and Myra are named co-estate trustees. Edie took a number of steps in her capacity as co-estate trustee under the 2010 wills. She then started legal proceedings to challenge the validity of the 2010 wills, alleging that her father lacked testamentary capacity when he executed them.

[9] Adam, too, seeks to challenge the validity of the 2010 wills. He has separate legal representation and has taken separate legal steps in that regard. I will refer to Edie and Adam's proceedings together as the "wills challenges".

[10] The York parties moved to have the wills challenges dismissed on the basis that they are barred by the equitable doctrines of estoppel by representation and estoppel by convention.

[11] By order dated November 21, 2014 (the "order") [Neuberger Estate v. York, [2014] O.J. No. 5605, 2014 ONSC 6706 (S.C.J.)], the motion was granted. Both Edie and Adam appeal (together, the "appellants").

[12] For the reasons that follow, I would allow the appeals.

II. Background

[13] The following information is drawn from the record and provided in order to give context to the issues and their analysis. It is not to be taken as findings of fact.

A. The testator -- Chaim Neuberger

[14] Chaim Neuberger was born on August 20, 1930 in Poland. He died on September 25, 2012. A survivor of the Holocaust, he came to Canada in the 1940s.

[15] Mr. Neuberger was a very intelligent and savvy businessman. Over the course of his life in Canada, he amassed a multi-million dollar real estate empire that he owned and managed with his brother-in-law, Harry Sporer. From 2004 to 2011, [page725] Messrs. Neuberger and Sporer and their respective sons-in-law, Joel York and Michael Lax, managed the business.

B. 2004 butterfly and wills

[16] Until 2004, that part of the family business relevant to Mr. Neuberger's estate plan was operated as Nuberg & Dale Construction Limited ("N&D").

[17] In 2004, Mr. Neuberger effected a "butterfly" transaction, which split N&D's assets into two parts. One part was retained in N&D, and the other was transferred to 159179 Ontario Inc. (#179).[^3] His intention was that, on his death, Myra would inherit N&D and Edie would inherit #179. The purpose of the butterfly transaction was to facilitate Mr. Neuberger's wish to have his wealth divided equally between his daughters, on his death.

[18] Contemporaneously with the butterfly transaction, Mr. Neuberger executed the 2004 wills. The 2004 wills gave Edie and Myra voting control over #179 and N&D respectively. It is unclear from the record when Edie first obtained copies of the 2004 wills. However, according to para. 44 of the York parties' factum, they only produced the 2004 wills sometime after March 2014 but before August 28 and 29, 2014, when the motion below was heard.

[19] There is no dispute that when Mr. Neuberger executed the 2004 wills, he had testamentary capacity.

C. 2010 estate freeze and wills

[20] In 2010, Mr. Neuberger effected an estate freeze, which resulted in the common shares of #179 and N&D being held by separate trusts. The beneficiaries of the #179 trust are Edie and her children. The beneficiaries of the N&D trust are Myra and her children. The effective date of the estate freeze was November 30, 2010. Mr. Neuberger retained preference shares in each of #179 and N&D, allowing him continued effective control over them. Except for ownership of the common shares, the business of N&D and #179 did not change as a result of the estate freeze.

[21] The 2010 wills were prepared contemporaneously with the estate freeze. Mr. Neuberger executed those wills on August 18, 2010. He also executed a continuing power of attorney for property (the "2010 POA") at that time. Under the 2010 POA, [page726] Edie and Myra were jointly appointed his attorneys but Myra was designated the sole attorney with respect to matters concerning N&D and Edie was designated the sole attorney with respect to matters concerning #179.

[22] In April 2011, Edie made a demand for the 2010 POA. She was given a copy of it in October of 2011 and began acting pursuant to it.[^4]

D. A Comparison of the 2004 and 2010 wills

[23] At first blush, the 2004 wills and the 2010 wills appear to be very similar. In both sets of wills,

(i) Myra and Edie are named as joint executors and trustees;

(ii) the definitions of the primary and secondary estates are the same;

(iii) the primary will is designed to deal with Mr. Neuberger's non-corporate assets which require a grant of probate (such as his bank accounts and RIFs);

(iv) the "primary estate" is defined as all of Mr. Neuberger's property, except for his "secondary estate";

(v) the residue of the primary estate is to be divided into two equal shares, with one share for the benefit of Edie and her children and the other share for the benefit of Myra and her children;

(vi) the secondary estate consists of the bulk of Mr. Neuberger's assets and includes his interests in #179 and N&D. It is defined to include his shares in the capital stock of, amounts receivable from, and property held in trust by N&D and #179, as well as all of his other property that can be dealt with without a certificate of appointment; and

(vii) the secondary will gives voting control of #179 and N&D to Edie and Myra respectively.

[24] Edie contends that there is a significant difference between the two sets of wills, however. She says that the 2004 wills have the effect of balancing any inequity in the values of [page727] N&D and #179 at Mr. Neuberger's death but the 2010 wills do not. She contends that this results in Myra (and her children) benefitting by some $13 million.

[25] The difference between the two sets of wills arises from the treatment of the capital stock of, and amounts receivable from, #179 and N&D.

[26] Under the 2004 wills, the capital stock of, and amounts receivable from, #179 and N&D are included in the residue of the secondary estate. The residue is then divided into two equal shares, with one share going to Edie and her children and the other share going to Myra and her children. Thus, if the value of the capital stock of, and amounts receivable from, #179 is less than the value of the capital stock of, and amounts receivable from, N&D at the time of Mr. Neuberger's death (as Edie alleges is the case), the 2004 wills require that an equalization exercise be performed with the result that the residue is divided into equal shares before being distributed to each of Edie (and her children) and Myra (and her children).

[27] However, under the 2010 wills, the capital stock of, and amounts receivable from, #179 and N&D are distributed directly to each of the two groups. That is, under the 2010 wills, Mr. Neuberger left not only his shares in #179 and N&D to Edie and Myra respectively, but also the amounts owing to him by those companies. Edie contends that at the time of Mr. Neuberger's death, N&D had approximately $13 million more in its shareholder loan account than did #179, which means that he left $13 million more in shareholder loan assets to Myra than to her. (The majority of that amount was owing to Mr. Neuberger because he lent his income back to N&D.) This inequity is not redressed under the 2010 wills but it would be under the 2004 wills.

[28] Edie contends that this difference between the 2004 wills and the 2010 wills is contrary to Mr. Neuberger's long-stated intention to treat his daughters equally upon his death. Moreover, she says, the 2010 wills were executed when Mr. Neuberger did not have the testamentary capacity to understand the subtlety or significance of the change that was made or to appreciate the difference in value between the N&D and #179 assets, which was fundamental to understanding the changed terms.

E. Administration of the estate

[29] The estate's terminal tax return and associated taxes have been paid. The final tax return and taxes relate to the income Mr. Neuberger earned in the final year of his life, including capital gains arising on the deemed disposition of his significant [page728] assets. In essence, the 2010 secondary will made Myra responsible for payment of the income taxes attributable to N&D and Edie responsible for those attributable to #179. Accordingly, Edie arranged for the payment of approximately $11.4 million, which consisted of the taxes, penalties and interest associated with #179, and Myra arranged for the payment of approximately $15.2 million, which consisted of the taxes, penalties and interest associated with N&D.

[30] In her capacity as estate trustee of the 2010 wills, Edie took a number of steps. She

(i) wrote to Maple Leaf Sports and Entertainment asking that it transfer two tickets previously registered in Mr. Neuberger's name into her and Myra's names;[^5]

(ii) objected to the fact that Mr. Neuberger's Polish nickname had been engraved on his headstone;[^6]

(iii) sought to obtain medical records from her father's physicians and from OHIP;

(iv) redeemed preference shares of #179; and

(v) initiated legal proceedings and took certain steps in them, as set out more fully below.

[31] Notably, however, few of the key aspects of administration of the estate have been undertaken:

(i) no certificate of appointment of estate trustee has been obtained under the 2010 wills -- indeed, neither Myra nor Edie has applied for one;

(ii) Myra and Edie have never had an estate trustees' meeting or jointly retained a lawyer to advise on the administration of the estate and validity of the 2010 wills;

(iii) no distributions have been made from the estate; and

(iv) Mr. Neuberger's shares in each of #179 and N&D remain in his name, undistributed. [page729]

F. Key steps in the legal proceedings

[32] April 15, 2013 -- Edie brought an application to pass over or remove Myra as co-estate trustee or, alternatively, to have both Myra and herself removed and the Bank of Nova Scotia Trust Company appointed in their place. Edie brought this application in her capacity as a named estate trustee under the 2010 wills (the "original application").

[33] May 22, 2013 -- Myra brought a cross-application to, among other things, compel Edie to prepare and pass certain accounts.

[34] August 21, 2013 -- In her capacity as estate trustee, Edie brought a motion for production of Mr. Neuberger's legal, medical, and financial records.

[35] November 13, 2013 -- Myra brought a motion for an order transferring the shares of N&D and #179 in accordance with the terms of the 2010 wills.

[36] December 19, 2013 -- Edie brought a fresh application in her personal capacity ("Edie's personal application"), in which she challenged the validity of the 2010 wills.

[37] January 2014 -- Adam became an active participant in the litigation. He

(i) filed a notice of appearance in Edie's personal application (January 20);

(ii) filed a notice of objection to the issuance of a certificate of appointment of estate trustee with a will to either Myra or Edie (January 21); and

(iii) brought a motion for directions, within Edie's personal application, in which he sought to be joined as an applicant and also challenged the validity of the 2010 wills (January 29).

[38] February 7, 2014 -- the York parties brought the motion which led to these appeals. In it, they asked the court to dismiss the wills challenges on the basis that those challenges were barred by the equitable doctrines of estoppel by representation and estoppel by convention.

G. The wills challenges

[39] In her wills challenge, Edie voiced concerns about the validity of the 2010 wills based on her father's alleged incapacity and susceptibility to undue influence at the time that he executed them. She also alleged suspicious circumstances. [page730]

1. Incapacity

[40] Edie referred to evidence showing that her father's mental state was of sufficient concern among his family and business advisors by early 2011 that they arranged for him to be assessed by a number of different doctors.

[41] For the purposes of these appeals, it is unnecessary to review the medical evidence. It is sufficient to refer to the report of Dr. Kenneth Shulman, whom Edie retained after her father's death. Dr. Shulman is the Richard Lewar Chair in Geriatric Psychiatry at Sunnybrook Health Sciences Centre, and a leading authority on the assessment of testamentary capacity.

[42] Dr. Shulman's report was a retrospective assessment of Mr. Neuberger's capacity, based on a review of Mr. Neuberger's medical records and the assessments that had been conducted during Mr. Neuberger's life. Based on the available medical records, Dr. Shulman said that he was able to extrapolate back to August 2010, when the wills were executed. He stated:

I conclude from a clinical perspective that in August 2010, Mr. Neuberger would not have been capable of dealing with any degree of complexity with respect to business or property decisions related to his Wills . . . As documented by Dr. Gilley, he was not capable of understanding the relevant facts with respect to his assets and he was certainly not capable of appreciating the reasonably foreseeable consequences of taking or not taking specific business decisions . . . It follows therefore, that from a clinical perspective, Mr. Neuberger would not have been capable of making decisions about his property, finances, or making significant changes in his Wills in 2010.

[43] The respondents did not cross-examine Dr. Shulman, put forward their own expert or adduce any medical evidence. However, they point to evidence showing that Edie had concerns about her father's capacity since at least September 2010 but she did not raise allegations of incapacity until she brought her personal application on December 19, 2013. They note also that as of October 2011, Edie began relying on her authority under the 2010 POA, which was executed at the same time as the 2010 wills. Thus, they say, Edie was prepared to accept that her father had capacity to act when doing so advanced Edie's own personal interests.

2. Suspicious circumstances

[44] Edie further maintains that the 2010 wills were executed in suspicious circumstances and at a time when her father was susceptible to undue influence.

[45] From 2004 to 2011, Messrs. Neuberger, Sporer, York and Lax managed both N&D and #179. Edie alleges that particularly in 2010 and 2011, Mr. Neuberger was incapacitated and [page731] Messrs. Sporer, York and Lax managed the business in a way that preferred Myra (N&D) over Edie (#179).

[46] She gives an example of Mr. Neuberger's alleged susceptibility, which took place about five months after Mr. Neuburger executed the 2010 wills. At that time, a fundraising representative from Bar Ilan University visited Mr. Neuberger at his home and extracted a promise that Mr. Neuberger would make a donation of $20 million.

[47] Mr. Neuberger's caregiver called Myra to tell her about the promised donation and said that even though Mr. Neuberger told her he did not want to give the money and tried to resist the fundraiser's requests, he had given in and agreed to make the donation.

[48] Myra contacted Mr. Neuberger's lawyer and told him that the fundraiser was bothering her father and "pushing him around". The lawyer sent the fundraiser a letter telling him to leave Mr. Neuberger alone.

[49] Adam shares Edie's concerns about Mr. Neuberger's alleged lack of capacity when the 2010 wills were executed and adds the following in support of his concerns about suspicious circumstances. He says that those who stand to benefit from the 2010 wills were involved in Mr. Neuberger's execution of them. He notes that Mr. Neuberger was not a detail-oriented person and that he relied heavily on his closest business advisers -- particularly Myra's husband, Joel York -- to explain the effect and importance of transactions.

[50] Adam also draws attention to the fact that there was no evidence that anyone had explained the effect of the 2010 wills to Mr. Neuberger. The accountant who advised on the estate freeze says that he never met with, or received instructions from, Mr. Neuberger personally. And, Adam says, the respondents have resisted disclosure of Mr. Neuberger's solicitors' files. Those records would shed light on whether Mr. Neuberger's lawyers ever met with, or received instructions from, Mr. Neuberger personally with respect to the 2010 wills or, if not, where their instructions came from.

III. The Decision Below

[51] After setting out the salient facts and the parties' positions, the motion judge began her analysis by finding that Adam was a "straw man" who came forward without knowledge of the estate or the 2010 wills, to support his mother's position in the litigation.

[52] The motion judge said that all of the adult grandchildren have a vested interest in the trusts in the 2010 wills, and that [page732] a reading of those wills show that the children[^7] in each group benefit equally.

[53] The motion judge viewed Edie's wills challenge as a questioning of all of Mr. Neuberger's financial decisions and transactions during the period in which she had little control over Mr. Neuberger's actions. She also stated that if Edie's personal application were to succeed, the estate freeze would have to be unwound.[^8]

[54] The motion judge found that Edie carried on administering the assets in #179 after Mr. Neuberger's death, as an estate trustee. She further found that Myra had relied on the 2010 wills in paying the income taxes relating to her interest in N&D.

[55] The motion judge then considered the doctrines of estoppel by representation and estoppel by convention. She began by setting out the legal tests for both doctrines and concluded that Edie was estopped from challenging the validity of the 2010 wills. She reached this conclusion based on

(i) Edie's delay in bringing her challenge and the absence of an explanation for that delay, despite having had doubts as to Mr. Neuberger's capacity even prior to 2011, when she began acting under the 2010 POA;

(ii) the actions which Edie had taken as estate trustee and her having held herself out as an estate trustee to various professionals; and

(iii) the prejudice that would ensue from having to unwind the estate freeze and that the respondents would suffer as a result of having taken steps taken based on the 2010 wills.

[56] The motion judge found that Adam should not be allowed to challenge the 2010 wills because

(i) he had no independent knowledge of the estate, its assets, previous wills and pertinent information about Mr. Neuberger's estate planning; all of his information on these matters having come from Edie; [page733]

(ii) he did not have a close relationship with his grandfather; and

(iii) he had no real explanation for why he would challenge the 2010 wills and for why he left it "so late in time" to come forward.

[57] The motion judge found that Adam had made no representations but stated that was not sufficient to allow his wills challenge to go forward "at this late date".

[58] The motion judge described rule 75.01 as being "discretionary in nature", and stated that delay in bringing a claim pursuant to it is a strong reason for dismissing the claim. She also said that neither Edie nor Adam had established an "arguable case".

[59] The motion judge concluded by finding that both estoppel by representation and estoppel by convention had been made out. Consequently, she granted the respondents' motion and dismissed the wills challenges.

IV. The Issues

[60] Edie raises three issues on appeal. She submits that the motion judge erred in

(1) analyzing her right to challenge the 2010 wills through the post-probate regime of rules 75.04 and 75.05, rather than rule 75.01;

(2) finding that her wills challenge was barred by estoppel; and

(3) failing to take into account the relevant policy considerations.

[61] Adam submits that the motion judge erred by failing to recognize his automatic right to seek proof in solemn form of the 2010 wills. He echoes Edie's second ground of appeal, namely, that the motion judge erred in barring his wills challenge based on the equitable doctrines of estoppel by representation and estoppel by convention. As well, Adam contends that the motion judge erred in

(4) barring him from seeking proof of the 2010 wills in solemn form because he is a "straw man" for his mother; and

(5) making findings of fact in a conclusory fashion, without weighing the evidence and making any necessary credibility findings. [page734]

[62] The respondents see the issues in a very different way. Their position is this. They brought a motion to have the wills challenges dismissed based on the equitable doctrines of estoppel by representation and estoppel by convention. They were successful, with the result that the motion judge made an in personam order estopping Edie and Adam from continuing those challenges. Consequently, the only issue on appeal is whether the motion judge erred in estopping the appellants from contesting the validity of the 2010 wills.

[63] While I agree with the respondents that estoppel was central to the motion judge's determination to dismiss the wills challenges, in my view, all of the issues that have been raised warrant consideration.

[64] Before turning to those issues, it is necessary to consider the legal framework governing probate. In the course of that consideration, I will discuss the operation of rules 75.01 and 75.06, which naturally leads to a consideration of Adam's contention that he has an automatic right to require that the 2010 wills be proved in solemn form. Thus, after setting out the legal framework, I address that contention as a preliminary issue.

V. The Legal Framework Governing Probate

[65] In this section, I will discuss (a) what probate means; (b) the nature of the court's role and jurisdiction in probate; (c) rules 74 and 75 of the Rules of Civil Procedure; and (d) proof in solemn form.

A. Probate

[66] Probate is the court procedure by which a will is proved to be valid or invalid: Black's Law Dictionary, 8th ed. (St. Paul: West Group, 2004). The term is also commonly used to refer to the court order certifying that particular writings constitute a deceased's will and that those persons named as estate trustees have the authority to act in relation to the testator's estate: R. Hull and I. Hull, Macdonell, Sheard and Hull on Probate Practice, 4th ed. (Scarborough, Ont.: Carswell, 1996), at p. 185.

B. The nature of the court's role and jurisdiction in probate

[67] The particular court with jurisdiction to address probate matters has changed over time in Ontario. In Otis v. Otis, [2004] O.J. No. 1732, 7 E.T.R. (3d) 221 (S.C.J.), at para. 22, Cullity J. opined that despite the transfer of probate jurisdiction from the former surrogate courts to the Superior Court of Justice and the replacement of the Surrogate Court Rules with Rules 74 and 75 [page735] of the Rules of Civil Procedure, the nature of the court's jurisdiction has not changed in material respects. I agree.

[68] I agree also with Cullity J.'s description of that jurisdiction, set out in paras. 23-26 of Otis. Cullity J. explains that the court's jurisdiction in probate is inquisitorial. That is, the court's role is not simply to adjudicate upon a dispute between parties. It is the court's function and obligation to ascertain and pronounce what documents constitute the testator's last will and are entitled to be admitted to probate. Further, the granting of probate does not bind only the parties to the proceeding. Unless and until probate is set aside, it operates in rem[^9] and can affect the rights of other persons. The court also has a special responsibility to the testator,[^10] who cannot be present to give voice to his or her true intentions.

C. Rules 74 and 75 of the [Rules of Civil Procedure](https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.html)

[69] Since January 1, 1995,[^11] applications for probate have been governed by Rules 74 and 75 of the Rules of Civil Procedure. However, under those rules, the nomenclature has changed. An application for a "certificate of appointment of estate trustee" replaces the former application for probate.

[70] Rule 74 governs non-contentious estate proceedings, whereas Rule 75 governs estate proceedings that are contentious. Because the proceedings in this estate matter are contentious, Rule 75 is in play.

[71] Rule 75.01 empowers an estate trustee or any person appearing to have a financial interest in an estate (an "interested person") to make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased "proved in such manner as the court directs".

[72] There are two points to observe about rule 75.01. First, it provides that an application to have the testamentary instrument proved is to be made under rule 75.06. Second, the quoted words -- "proved in such manner as the court directs" -- would include proof in solemn form, which is discussed below. [page736]

[73] Rules 75.04 and 75.05 apply when probate (that is, a certificate of appointment of the estate trustee) has been granted and the court is considering whether to revoke or return the certificate. As no certificate of appointment of estate trustee has been issued in this matter, neither rule 75.04 nor 75.05 applies on this appeal.

[74] Rule 75.06(1) gives an interested person the right to apply for directions or move for directions in another proceeding under Rule 75. So, for example, Adam made his motion for directions (in which he challenged the validity of the 2010 wills) pursuant to rule 75.06(1). Adam is an interested person -- that is, he is a person who appears to have a financial interest in Mr. Neuberger's estate. Edie made her personal application under Rule 75 prior to Adam making his motion. Therefore, pursuant to rule 75.06(1), Adam could bring his motion for directions within Edie's personal application, which was "another proceeding under" Rule 75.

[75] Rule 75.06(3) gives the court important powers in respect of an application or motion brought under Rule 75. Among other things, the court may direct

-- the issues to be decided;

-- who are parties, who is plaintiff and defendant and who is submitting rights to the court;

-- who shall be served with the order for directions; and

-- procedures for bringing the matter before the court in a summary fashion.

[76] As I explain below, rule 75.06(3) plays an important role in contentious estate proceedings.

D. Proof in solemn form

[77] Proving a will in solemn form requires the propounder of a will to prove, in open court upon notice to all parties having a financial interest in the estate, that the will was duly executed, the testator had testamentary capacity and that the testator had knowledge and approval of the contents of the will: Macdonell, Sheard and Hull on Probate Practice, at p. 315. The court will also address allegations of undue influence and suspicious circumstances. In this regard, reference must be had to the Supreme Court decision in Vout v. Hay, [1995] 2 S.C.R. 876, [1995] S.C.J. No. 58.

[78] Vout v. Hay established that the person propounding the will has the legal burden of proof with respect to due execution, [page737] knowledge and approval, and testamentary capacity. Upon proof that the will was duly executed with the requisite formalities, the propounder is aided by a rebuttable presumption, which casts an evidential burden on those challenging the will. That evidential burden can be satisfied by those challenging the will introducing evidence of "suspicious circumstances" -- that is, evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. If such evidence is adduced, the legal burden reverts to the propounder. By contrast, if undue influence is alleged, the burden is on those attacking the will: pp. 889-90 S.C.R.

[79] I pause to note that the words "proof in solemn form" do not appear in Rule 75. In my view, the power of the court to order formal proof of a testamentary instrument under Rule 75 encompasses the right to order proof in solemn form but is not synonymous with proof in solemn form. This point is considered more fully in my analysis of the preliminary issue.

VI. Analysis

Preliminary issue: Is there an automatic right to proof in solemn form pre-probate?

[80] Adam contends that prior to probate being granted, an interested person is entitled, as of right, to have the will proved in solemn form. He says that rule 75.01 confers a right on any interested person to require proof in solemn form and that the court has no discretion to approve or disapprove such a request. He further submits that the court's only discretion comes from rule 75.06(3), which empowers the court to limit the issues to be decided and direct a summary hearing procedure, but does not empower the court to refuse a request for proof in solemn form.

[81] I do not agree.

[82] I accept that, as a general principle, before probate issues an interested person has the right to request formal proof of the testamentary instrument, pursuant to rules 75.01 and 75.06. But I do not accept that this general principle means that the interested person is entitled, as of right, to require that the testamentary instrument be proved in solemn form. I offer two reasons for this view.

[83] The first reason flows from the words of rules 75.01 and 75.06. For ease of reference, rule 75.01 is set out again now:

75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have [page738] a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.

(Emphasis added)

[84] On a plain reading of rule 75.01, it does not give an interested person the right to compel proof in solemn form. Rather, rule 75.01 provides that an interested person may make an application (1) under rule 75.06; and (2) to have a testamentary instrument "proved in such manner as the court directs". The first point shows that the interested person's application under rule 75.01 must be considered in conjunction with rule 75.06 because the application must be brought under rule 75.06. The second point makes it clear that it is the court who is to direct the manner in which the testamentary instrument is to be proved. Therefore, the interested person cannot require proof in solemn form -- he or she can request proof in solemn form but cannot require it.

[85] As indicated, pursuant to rule 75.01, an interested person may make an application under rule 75.06. For the purposes of these appeals, rule 75.06(3) is the critical provision.[^12] It reads as follows:

75.06(3) On an application or motion for directions, the court may direct,

(a) the issues to be decided;

(b) who are parties, who is plaintiff and defendant and who is submitting rights to the court;

(c) who shall be served with the order for directions, and the method and times of service;

(d) procedures for bringing the matter before the court in a summary fashion, where appropriate;

(e) that the plaintiff file and serve a statement of claim (Form 75.7);

(f) that an estate trustee be appointed during litigation, and file such security as the court directs;

(g) such other procedures as are just.

(Emphasis added)[^13] [page739]

[86] Rule 75.06(3) is permissive. It says that the court "may" direct certain things. It does not say that the court "must" or "shall" grant the application or motion.

[87] Thus, in my view, when rules 75.01 and 75.06 are read together -- as rule 75.01 indicates must be done -- the court has a discretion whether to order that a testamentary instrument be proved, as well as a discretion over the manner in which the instrument is proved.

[88] My second reason for rejecting the notion that, pre-probate, an interested person has a right to require proof in solemn form is this. In my view, an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.

The correct approach to rule 75.06

[89] Based on the above analysis, in my view, an applicant or moving party under rule 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. If the applicant or moving party fails in that regard or if the propounder of the testamentary instrument successfully answers the challenge, then the application or motion should be dismissed. If, on the other hand, the applicant or moving party adduces or points to evidence that calls into question the validity of the testamentary instrument which the propounder does not successfully answer, the court would generally order that the testamentary instrument be proved. In determining the manner in which the instrument be proved, the court would have recourse to the powers under rule 75.06(3).

[90] This approach gives meaning to both rule 75.01 and rule 75.06(3). It also meets the concern about potentially needless depletion of estates.

[91] Further, this approach is consistent with the jurisprudence on Rule 75. To date, the courts have not approached challenges to the validity of a will on the basis that an interested person has an absolute right to proof in solemn form. Instead, when faced with a request for proof in solemn form prior to the issuance of a certificate of appointment of estate trustee, they [page740] have considered the evidentiary basis underlying the request. Two examples will demonstrate this.

[92] In Smith Estate v. Rotstein, [2010] O.J. No. 1527, 2010 ONSC 2117, 56 E.T.R. (3d) 216 (S.C.J.), the daughter of a testator objected to probate, alleging lack of knowledge and/or approval by the testator and undue influence. The will's propounders brought a summary judgment motion to dismiss the daughter's notice of objection. Justice D.M. Brown granted the motion, finding that there was no evidentiary foundation for the daughter's objection. This court affirmed that decision, observing that there was not "a scintilla of evidence that the [challenged will and codicils] are invalid": (2011), 106 O.R. (3d) 161, [2011] O.J. No. 3075, 2011 ONCA 491, at para. 36, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 441.

[93] A similar result occurred in Chappus Estate (Re), [2009] O.J. No. 1335, 2009 ONCA 279, 46 E.T.R. (3d) 186. In Chappus, the appellant challenged the validity of the testator's wills on the basis of undue influence. The foundation of her challenge was the nature of the relationship between the testator and the respondent propounders of the wills -- the testator's lawyer, doctor and accountant -- who were also beneficiaries and the estate trustees under the wills. A trial was ordered. Before the trial took place, the propounders brought a motion for summary judgment to dismiss the challenge. On the motion, the challenger led no evidence in support of her assertion of undue influence, simply arguing that the matter could not be decided summarily.

[94] The motion judge found that there was no issue for trial and granted summary judgment. The wills challenger appealed.

[95] At para. 7 of Chappus, Sharpe J.A., writing for the court, observed that the rules contemplate the possibility of summary disposition in contentious estate matters. He saw no error on the part of the motion judge in concluding that the wills challenger had raised no triable issue. The wills' propounders had adduced a substantial record of evidence showing that the wills had been properly executed, and that the testator was of sound mind with a full understanding of the contents of the wills and how her property was to be disposed of on her death. The wills challenger led no evidence to dispute those facts and there was no evidence of suspicious circumstances: Chappus, at paras. 8-10.

[96] I accept that some first instance decisions have indicated that next of kin are entitled, as of right, to have the will proved in solemn form. See, for example, Stefanik v. Stefanik, [2000] O.J. No. 3279, 99 A.C.W.S. (3d) 524 (S.C.J.), at para. 4. However, in my view, those statements are reflective of a presumption that applies in situations where no certificate of appointment of [page741] estate trustee has been issued, rather than a hard and fast rule. Indeed, although, at para. 4 of Stefanik, the judge describes the entitlement to be "as of right", at para. 5, he says that such orders "have not been difficult to obtain", "are virtually automatic" and that the requirements to obtain such orders "have not been exacting". These statements indicate that the right is not absolute.

Conclusion on the preliminary issue

[97] It is for these reasons that, in my view, the appellants are not entitled, as of right, to proof in solemn form of the 2010 wills, despite the fact that probate has not yet issued in respect of those wills.

[98] Whether the appellants are entitled to formal proof of the 2010 wills has yet to be decided. If and when Edie proceeds with her personal application or Adam proceeds with his motion for directions, it will be for the court hearing the matter to decide whether to order that the 2010 wills be proved and, if so, in accordance with rule 75.06(3), to direct the manner in which they are to be proved.

Issue #1 : Did the motion judge err in her analysis of Edie's right to challenge the 2010 wills?

[99] As I have explained, rules 75.04 and 75.05 apply to wills challenges where probate (a certificate of appointment) has already issued and the court must decide whether to revoke or return the certificate. In this proceeding, probate has never been granted. Edie contends that the motion judge erred by conflating the legal tests developed in relation to rules 75.04 and 75.05 with that to be applied under rule 75.01 where probate has never been granted. Thus, Edie submits, the motion judge wrongly applied the "arguable case" and "delay" tests when analyzing her right to challenge the 2010 wills under rule 75.01.

[100] The respondents say that this issue is a "red herring". They submit that the motion judge's sole task was to decide whether the doctrine of estoppel applied to preclude the wills challenges from proceeding. While they acknowledge the existence of the wills challenges, they say that the appellants never applied or moved to have the 2010 wills proved in solemn form and they cannot use these appeals to reconstitute the proceedings.

[101] I accept the respondents' position on this matter. The motion did not join issue with the merits of the wills challenges and there was no rule 75.06 application or motion before the motion judge. The only issue before the motion judge was [page742] whether the doctrines of estoppel by representation and/or convention barred the appellants from continuing with the wills challenges. While there is some discussion of the merits of the wills challenges in the motion judge's reasons, it is not clear how that relates to the motion before her. I make the same comment in respect of her discussion of the jurisprudence relating to rules 75.04 and 75.05.

[102] Accordingly, the first issue does not arise on these appeals and nothing more need be said about it.

Issue #2 : Did the motion judge err in barring the wills challenges based on estoppel?

[103] In my view, the equitable doctrines of estoppel by representation and estoppel by convention do not lie to bar a challenge to the validity of a will and the motion judge erred in so doing. This view rests on two considerations. First, as I explain below, the motion judge erred in finding a jurisprudential basis for the application of the doctrine of estoppel to matters involving the validity of a will. Second, as I explain when addressing the following issue, the use of estoppel in such matters is antithetical to the policy considerations which govern probate.

[104] The motion judge relied on three cases as authority for the power to invoke estoppel to bar the wills challenges: Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co., [1970] S.C.R. 932, [1970] S.C.J. No. 48; Ryan v. Moore, [2005] 2 S.C.R. 53, [2005] S.C.J. No. 38, 2005 SCC 38; and Leibel v. Lewis, [2014] O.J. No. 3745, 2014 ONSC 4516, 2 E.T.R. (4th) 268 (S.C.J.).

[105] With respect, neither Canadian Superior Oil nor Ryan is relevant to the question of whether estoppel by representation and/or estoppel by convention apply to a challenge to the validity of a will.

[106] In Canadian Superior Oil, the appellants sought a declaration that an oil and gas lease was valid and subsisting, despite the fact that the lease had terminated when drilling ceased. The appellants argued that by virtue of the respondent's conduct, he was estopped from taking the position that the lease had terminated.

[107] The Supreme Court dismissed the appeal. It held that when the lease terminated, the legal relationship between the parties ended and the lease could thereafter only be revived by agreement for consideration. It said that the doctrine of promissory estoppel was premised on a legal relationship existing between the parties. As that relationship had ended before any of the alleged representations, it did not apply. [page743]

[108] Thus, it can be seen, Canadian Superior Oil does not offer any authority or support for the notion that the equitable doctrines of estoppel by representation and/or convention apply to probate matters. Canadian Superior Oil deals with promissory estoppel -- not estoppel by convention or representation. Moreover, it is decided within the context of a lease agreement. A lease is a private matter between two individuals and, therefore, is fundamentally different than is the question of the validity of a will.

[109] Ryan arose from a motor vehicle accident involving the plaintiff, defendant and another person. The defendant died of causes unrelated to the accident. Letters of administration were granted to the defendant's administrator. Thereafter, the plaintiff -- not knowing of the defendant's death -- issued a statement of claim. The defendant's insurer applied to have the action dismissed because it was outside the limitation period.

[110] The trial judge found that the action was not statute-barred. On appeal, that decision was reversed. A further appeal to the Supreme Court of Canada was allowed in part, but the claim was struck because it had not been brought within the time period prescribed by the Survival of Actions Act, R.S.N.L. 1990, c. S-32.

[111] Ryan does discuss estoppel by convention and representation. However, the issue in Ryan was whether those doctrines were applicable to prevent a party from raising a limitation period defence in a personal injury action. There is nothing in Ryan to suggest that the doctrines of estoppel by convention and representation can be extended to apply to circumstances such as those in the present case where the matter is not a private dispute between individuals but, rather, a challenge to the validity of a will.

[112] Leibel is the only decision of which I am aware in which estoppel has been applied when determining whether a challenge to the validity of a will should be permitted to proceed. It is an earlier decision of the same motion judge. That decision was not appealed.

[113] In Leibel, the party seeking to challenge the validity of wills waited more than two years from the date of death to bring his application. The motion judge found that there were no discoverability issues and, thus, that the claim was statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.[^14] [page744]

[114] In case she was in error in finding that the application was statute-barred, the motion judge went on to consider whether the doctrines of estoppel by representation and convention applied. She referred to the same cases as she did in the present case (Canadian Superior Oil and Ryan) as authority for her use of those doctrines. However, as I have explained, neither Canadian Superior Oil nor Ryan are authority for the proposition that estoppel applies to the question of whether an interested person should be permitted to proceed with a challenge to the validity of a will.

[115] Indeed, there is nothing in the jurisprudence to support the extension of the equitable doctrines of estoppel by convention or representation to matters involving the validity of a will. Accordingly, it was an error to have dismissed the wills challenges on the basis of those doctrines.

[116] In light of this determination, it is unnecessary to consider whether the motion judge erred in her application of those doctrines.

Issue #3 : Did the motion judge err by failing to take into account the relevant policy considerations?

[117] The policy considerations which underlie the law of probate also augur against permitting estoppel to be used to bar challenges to the validity of wills.

[118] In private law, estoppel is animated by the goal of creating transactional certainty between private parties in civil disputes.[^15] A will, however, is more than a private document. As explained above, a dispute about a will's validity engages interests that go beyond those of the parties to the dispute and extend to the testator and the public. Once a testamentary instrument is probated, it speaks to society at large. Probate is an in rem pronouncement that the instrument represents the testator's true testamentary intentions and that the estate trustee has lawful authority to administer the estate. Because of this, the court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated. It owes that duty to the testators, whose deaths preclude them from protecting their own interests, to those with a legitimate interest in the estate, and to the public at large. If the doctrine of estoppel were available to bar a party from having the validity of a will determined, [page745] the court's ability to discharge that responsibility would be in jeopardy.

[119] Edie raises a further policy consideration, related to the matter of delay. She brought her wills challenge less than two years after her father's death. The motion judge found that to be an undue delay. That finding weighed heavily in the motion judge's decision to bar Edie from proceeding with her wills challenge. Edie submits that allowing this aspect of the decision below to stand could adversely affect the administration of estates.

[120] I accept this submission.

[121] The motion judge's reasoning would place estate trustees with doubts as to the validity of a will in an untenable position. They would either have to bring a premature will challenge (i.e., one that was not fully informed because the trustee had not obtained the necessary information to determine whether such a challenge should be undertaken) or take no steps in the administration of the estate while investigating the testator's capacity, for fear of being deemed unduly dilatory or as having affirmed the validity of the will. As Haley J. remarked in Oestreich v. Brunnhuber, [2001] O.J. No. 338, 38 E.T.R. (2d) 82 (S.C.J.), at para. 26, mere delay in questioning the validity of a will is not enough to prevent the court from requiring proof in solemn form because, in many instances, a later will is found or grounds are later discovered which bring into question the will's validity.

[122] Finally, in light of Rule 75, there is no need to import the doctrine of estoppel into this area. As I explain above, Rule 75 provides the court with sufficient discretion that it can screen out meritless claims for formal proof of testamentary instruments and, for those with merit, control the manner in which the instrument is proved.

Issue #4 : Did the motion judge err in barring Adam from pursuing his wills challenge because he is a "straw man"?

[123] In my view, the motion judge erred in finding that Adam was a "straw man" in this litigation -- that is, that Adam is simply Edie's agent and only took a role in this litigation to support his mother.

[124] It is not clear to me on what basis the motion judge made the finding that Adam was a straw man. Adam's evidence was that he made an independent decision to commence his wills challenge and his parents tried to talk him out of it. Edie's evidence was that she did not wish any of her children to be involved in this acrimonious litigation. Neither Adam's nor Edie's evidence on this matter was disturbed on cross-examination. While the respondents alleged that Edie put Adam up to participating [page746] in the litigation in case she was found to be estopped from proceeding with her wills challenge, there was no evidence to support this allegation.[^16] If the motion judge rejected Adam's evidence -- which would necessarily entail credibility determinations -- it was incumbent on her to give some explanation for so doing: Trotter v. Trotter (2014), 122 O.R. (3d) 625, [2014] O.J. No. 5647, 2014 ONCA 841, at paras. 5 and 54-55.

[125] In any event, it was an error in law to bar Adam from pursuing his wills challenge on the basis that he was a straw man. At the time that Adam began his wills challenge, probate had not been granted. Adam is a person who appears to have a financial interest in his grandfather's estate. Pursuant to rule 75.06, Adam had the right to bring his motion within Edie's personal application and ask that the 2010 wills be proved in solemn form. He did not have to have direct or first-hand knowledge of the matters raised by Edie in her wills challenge in order to exercise that right. Nor does the fact that he is Edie's son disentitle him from pursuing that right.

Issue #5 : Did the motion judge err in her factual findings in respect of Adam?

[126] Adam submits that the motion judge's findings of fact in relation to his claim were made in a conclusory fashion, without explaining how she weighed conflicting evidence and resolved credibility disputes.

[127] In my view, this complaint is well founded, as the following two examples demonstrate.

[128] First, the motion judge found that Adam did not have a close relationship with his grandfather. Adam's evidence was that he had a close relationship with his grandfather. As there was no contrary evidence, it is not clear to me on what basis the motion judge made this finding. In any event, she could not have made this finding unless she either misapprehended the evidence or rejected Adam's evidence on the point. As I have explained, if the motion judge rejected Adam's evidence on this matter, it was incumbent on her to provide some explanation for so doing. [page747]

[129] Second, the motion judge said that Adam had not explained why he brought his wills challenge. This appears to be a misapprehension of the evidence because Adam did give an explanation. Adam's evidence was that until mid-January 2014, he was content to have his mother pursue the validity of the 2010 wills, without his involvement. After all, she was an estate trustee and, prior to Mr. Neuberger's death, had been directly involved in his business for a number of years. She had also been involved in the dispute over Mr. Neuberger's capacity to manage property, in the later years of his life.[^17] Moreover, despite being a beneficiary, Adam had little information about the estate. He had not been given a copy of the 2010 wills, a statement of assets and liabilities of the estate, or an accounting.

[130] Things changed when he learned, in mid-January 2014, that the York parties intended to bring a motion to strike Edie's wills challenge based on her actions. He felt that his interests might not be protected unless he actively participated in the wills challenges and, within a week, he had taken steps to independently protect his position and seek proof in solemn form of the 2010 wills.

[131] Adam also said that he was motivated by a concern that his grandfather was incompetent at the time he made the 2010 wills and, therefore, that those wills might not represent his grandfather's true wishes.

[132] In light of this evidence, it is not clear to me how the motion judge could conclude that Adam had given no explanation for why he began his wills challenge.

VII. Disposition

[133] Accordingly, I would allow the appeals and set aside the order, with costs of the appeals and motion to the appellants. If the parties are unable to agree on those costs, I would allow them to make written submissions on the same, not to exceed four typewritten pages, no later than ten days following the release of these reasons.

Appeal allowed.

[page748]

APPENDIX A

Rules 75.01, 75.03(1), 75.04, 75.05(1),

75.06(1)-(3)

FORMAL PROOF OF TESTAMENTARY INSTRUMENT

75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.

OBJECTION TO ISSUING CERTIFICATE OF APPOINTMENT

Notice of Objection

75.03(1) At any time before a certificate of appointment of estate trustee has been issued, any person who appears to have a financial interest in the estate may give notice of an objection by filing with the registrar or the Estate Registrar for Ontario a notice of objection (Form 75.1), signed by the person or the person's lawyer, stating the nature of the interest and of the objection.

REVOCATION OF CERTIFICATE OF APPOINTMENT

75.04 On the application of any person appearing to have a financial interest in an estate, the court may revoke the certificate of appointment of the estate trustee where the court is satisfied that,

(a) the certificate was issued in error or as a result of a fraud on the court;

(b) the appointment is no longer effective; or

(c) the certificate should be revoked for any other reason.

RETURN OF CERTIFICATE

Motion for Return of Certificate

75.05(1) The court may, on motion, order that a certificate of appointment be returned to the court where,

(a) the moving party seeks a determination of the validity of the testamentary instrument for which the certificate was issued or of the entitlement of the estate trustee to the certificate; or

(b) an application has been made under rule 75.04.

APPLICATION OR MOTION FOR DIRECTIONS

75.06(1) Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.

Service

(2) An application for directions (Form 75.5) or motion for directions (Form 75.6) shall be served on all persons appearing to have a financial interest in the [page749] estate, or as the court directs, at least 10 days before the hearing of the application or motion.

Order

(3) On an application or motion for directions, the court may direct,

(a) the issues to be decided;

(b) who are parties, who is plaintiff and defendant and who is submitting rights to the court;

(c) who shall be served with the order for directions, and the method and times of service;

(d) procedures for bringing the matter before the court in a summary fashion, where appropriate;

(e) that the plaintiff file and serve a statement of claim (Form 75.7);

(f) that an estate trustee be appointed during litigation, and file such security as the court directs;

(f.1) Revoked: O. Reg. 193/15, s. 13 (1).

(g) such other procedures as are just.

[^1]: All of the Rule 75 provisions referred to in these reasons can be found in Appendix A to this judgment. [^2]: The motion judge referred to the participating parties by their first names. For ease of reference, I have followed suit. [^3]: Each of N&D and #179 has a number of subsidiaries and/or related entities. 1597180 Ontario Inc. (#180) is a wholly owned subsidiary of #179. The butterfly transaction actually split the assets between N&D and #179/#180. For ease of reference, I refer to #179 alone. [^4]: Edie assumed control of #179 as director on October 6, 2011. However, even after that date, she says that she did not have control over all of the properties owned by #179, as the team of Sporer, York and Lax continued to manage some of the properties in which #179 had an interest. [^5]: Myra objected to the transfer of the hockey tickets on the basis that they did not belong to Mr. Neuberger but, rather, to one of the York/Sporer companies. [^6]: With Myra's consent, the nickname was removed, some months later. [^7]: Although the motion judge uses the word "children", I understand her to be referring to the children and grandchildren. [^8]: This appears speculative. No party sought the unwinding of the estate freeze and there was no evidence indicating that a successful will challenge would necessarily lead to an unwinding of the estate freeze. [^9]: For example, probate declares to the world that the estate trustee holds good title and has lawful authority to administer the estate. [^10]: The modern practice is to use the term "testator" to refer to both males and females who die leaving a will. I follow that practice in these reasons. [^11]: Rules 74 and 75 came into force on January 1, 1995, pursuant to O. Reg. 484/94. [^12]: Rule 75.06(1) simply provides that an interested person may apply or move for directions "as to the procedure for bringing any matter before the court". Rule 75.06(2) deals with service. [^13]: At the time this appeal was heard, rule 75.06(3) (f.1) also enabled the court to direct "that a mediation session be conducted under rule 75.1". That section was revoked pursuant to O. Reg. 193/15 and a new rule 75.06(3.1) concerning mediation was added. These changes came into force on January 1, 2016. [^14]: Nothing in these reasons is to be taken as having decided whether the Limitations Act applies to the bringing of an application under Rule 75. [^15]: Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (Cambridge: Cambridge University Press, 2003), at p. 65. [^16]: Adam's parents did offer to make an arrangement to help him finance the cost of litigation, if necessary, but Adam's uncontroverted evidence was that he would have proceeded with his wills challenge regardless of financial assistance from his parents. There was no agreement between Adam and his parents that they would fund his costs of the litigation or indemnify him if he were unsuccessful. [^17]: Following the incident in which Mr. Neuberger promised to make a $20 million donation, Edie took steps to have his capacity assessed so that she and Myra could assume their powers of attorney over his property.