Court File and Parties

Court of Appeal for Ontario Date: 20241205 Docket: COA-24-CV-0334

Before: Nordheimer, Copeland and Madsen JJ.A.

Between: Constance Violet Bell Applicant (Appellant)

And: Claudette Randell Respondent (Respondent)

Counsel: J. Chris Ireland, for the appellant Alexander N. Procope, for the respondent

Heard and released orally: December 4, 2024

On appeal from the judgment of Justice Aubrey D. Hilliard of the Superior Court of Justice, dated January 25, 2024, with reasons reported at 2024 ONSC 579 and supplementary reasons dated April 26, 2024.

Reasons for Decision

[1] The appellant seeks to set aside the order of the motion judge that dismissed the appellant’s Notice of Objection relating to the Last Will and Testament of Linda Elizabeth Erb, dated June 22, 2016, and ordered that the Estate Trustee receive the Certificate of Appointment of Estate Trustee with a Will. The appellant also challenges the motion judge’s ruling regarding the interest to be paid on the legacies made under the Will.

[2] The motion judge gave thorough reasons in which she reviewed the facts and the issues raised. She concluded that there was evidence that the deceased had the capacity to make the Will and that she had done so of her own free will. There was evidence from the lawyers involved in the preparation of the Will that the deceased had reviewed it before she signed it and there was independent evidence that the deceased was of a sound mind at the time that she made the Will.

[3] The appellant complains that the matter was determined in a summary manner instead of by way of pleadings and a trial. As cited by the motion judge, r. 75.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides for the summary determination of Estate matters. The appellant did not, at any point prior to the hearing, bring a motion for any other procedure to be followed as permitted by Rule 75.

[4] The appellant also has not shown any palpable and overriding error in the motion judge’s factual findings on the issues raised. Rather, the appellant seeks to have us revisit the record and make our own findings. That is not the role of this court.

[5] The appellant further challenges the motion judge’s supplementary decision that ordered her to pay interest on the legacies, the distribution of which was delayed while her Notice of Objection was outstanding. The issue of interest was entirely a discretionary one for the motion judge. An additional salient fact is that the appellant had earlier agreed that she should pay interest if the Will was found to be valid. The motion judge did not find any reason to release the appellant from her earlier agreement to do so.

[6] Finally, the appellant seeks leave to appeal the costs order in this case. That issue is also one that is entirely within the discretion of the motion judge. We would not grant the appellant leave to appeal costs.

[7] The appeal is dismissed as is the request for leave to appeal costs. The respondent is entitled to her costs of the appeal, on a partial indemnity basis, fixed in the amount of $20,000, inclusive of disbursements and HST.

“I.V.B. Nordheimer J.A.”

“J. Copeland J.A.”

“L. Madsen J.A.”