Robert Di Vincenzo

The applicant son brought a motion within an application regarding his elderly mother's capacity and the management of her property by his sister.

The mother had been diagnosed with Alzheimer's disease, but the sister disputed the diagnosis and procured new powers of attorney in her favour.

The court found reasonable grounds to believe the mother was incapable of managing her property and personal care, noting flaws in previous capacity assessments arranged by the sister.

The court ordered a comprehensive capacity assessment, a functional assessment, and conditionally ordered the sister to pass her accounts.

The defendant moved to vary an earlier order requiring that 50 percent of the proceeds from the sale of a property be held in trust pending determination of the plaintiff’s claimed beneficial interest.

The motion alleged that the plaintiff had failed to make full and frank disclosure when obtaining an earlier certificate of pending litigation on an ex parte basis, including failing to disclose prior sworn statements in earlier family proceedings contradicting his asserted ownership interest.

The court held that the newly discovered evidence would likely have affected the earlier decision and that the evidence could not reasonably have been obtained before the earlier motion.

The court varied the previous order to release the sale proceeds to the defendant.

The defendant’s motion to dismiss the action as frivolous or an abuse of process was adjourned and directed to proceed as a summary judgment motion.