Court of Appeal for Ontario

COURT OF APPEAL FOR ONTARIO DATE: 20210928 DOCKET: C69124

Strathy C.J.O., Lauwers and Sossin JJ.A.

BETWEEN

Reuben Moses Applicant (Appellant)

and

Rosy Moses, personally and in her capacity as the Estate Trustee of the primary and secondary estates of Aby Reuben Moses, deceased, and Rachel Moses Respondents (Respondents in Appeal)

Counsel: Gregory M. Sidlofsky, for the appellant Catherine Francis, for the respondent, Rachel Moses Ranjan Das, for the respondent, Rosy Moses, personally and in her capacity as the Estate Trustee of the primary and secondary estates of Aby Reuben Moses

Heard: September 3, 2021 by video conference

On appeal from the order of Justice Peter J. Cavanagh of the Superior Court of Justice, dated January 25, 2021, with reasons reported at 2021 ONSC 587, 64 E.T.R. (4th) 246.

Reasons for Decision

[1] The application judge dismissed the appellant’s application for a declaration of invalidity of a will made by his late father in 2019, three months before his death (the “2019 Will”). He claimed that the 2019 Will was invalid as a result of undue influence by his mother, the respondent Rosy Moses, and by his sister, the respondent Rachel Moses.

[2] In other proceedings, the appellant claims an interest in his father’s property, based in part on proprietary estoppel.

[3] The appellant advances two principal submissions. First, he submits that the application judge erred in his interpretation of s. 23 of the Estates Act, which gives a party standing under a will when making a claim to “property affected by the will”. He submits that his civil action against the estate is such a claim. He contends that in rejecting his submission, the application judge incorrectly relied on the decision of the Saskatchewan Court of Appeal in Adams Estate v. Wilson, 2020 SKCA 38, 57 E.T.R. (4th) 1.

[4] The appellant’s second submission is that the application judge erred by putting an onus on him to establish the invalidity of the 1996 Will, an issue that would be determined at a later date, if necessary.

[5] The application judge found that the appellant had no standing to bring the application to declare the will invalid, either under r. 75.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 or under s. 23 of the Estates Act, R.S.O. 1990, c. E.21. He was not a beneficiary under the 2019 Will and, even if the 2019 Will were to be set aside on the ground of undue influence, he would not be affected by the result, because there was an earlier will, made in 1996 (the “1996 Will”), under which the appellant would receive no share on the death of his father – the entire estate would go to his mother.

[6] In coming to these conclusions, the application judge made findings of fact concerning the provenance of the 1996 Will and the circumstances of its execution. Those findings were based on evidence tendered by the respondents concerning the discovery of the 1996 Will and its preparation and execution. Rachel Moses swore an affidavit concerning her discovery of the 1996 Will, which had been in the possession of her mother. Although the solicitor who prepared that will was deceased, his former legal assistant swore an affidavit identifying her signature as one of the two witnesses to the will and the signature of the solicitor as the other witness. The assistant deposed that it was the solicitor’s practice that two witnesses were always present when a client executed a will.

[7] The application judge noted that the appellant did not cross-examine either Rachel Moses or the lawyer’s assistant. Nor did he provide affidavit evidence that called into question any of the evidence the respondents had adduced. The application judge found that the appellant presented no evidence to support an inference that the 1996 Will was unauthentic or invalid. He found that the appellant “failed to satisfy the low threshold of presenting sufficient evidence to support an inference that he appears to have a financial interest in [his father’s] estate.” He therefore found that the appellant did not have standing under r. 75.06(1).

[8] The application judge also found that the appellant’s civil action based on proprietary estoppel did not give him standing to challenge the 2019 Will pursuant to s. 23 of the Estates Act, where he would otherwise have no standing to do so. The outcome of the civil action did not depend on the validity of the 2019 Will.

[9] We see no error in the application judge’s reasons. In the circumstances, there was an onus on the appellant to adduce some evidence to call into question the considerable body of evidence adduced by the respondent to establish the validity of the 1996 Will. The conclusion that he failed to do so is entitled to deference.

[10] Nor are we persuaded that the application judge erred in the interpretation or application of s. 23 of the Estates Act. The jurisdiction under that provision is discretionary and the appellant has identified no error by the application judge in the exercise of his discretion.

[11] In the circumstances, we do not find it necessary to decide whether the decision of the Saskatchewan Court of Appeal in Adams Estate reflects the law of Ontario.

[12] At the end of the day, as the application judge found, the appellant may pursue his claims in his civil action against the estate, his mother, and the companies in which his father had interests.

[13] The appeal is dismissed. We invited counsel to attempt to resolve the issue of costs. As we have not heard from them, we award costs to the respondent, Rachel Moses, in the amount of $15,000 and to the respondent, Rosy Moses, in the amount of $5,000, both amounts inclusive of disbursements and all applicable taxes.

“G.R. Strathy C.J.O.”

“P. Lauwers J.A.”

“L. Sossin J.A.”