Fergueson v. Martin, 2014 ONSC 2154

In the Estate of Coombs, deceased Fergueson et al. v. Martin et al.

[Indexed as: Fergueson v. Martin]

Ontario Reports

Ontario Superior Court of Justice,

D.M. Brown J.

April 4, 2014

119 O.R. (3d) 380 | 2014 ONSC 2154

Case Summary

Wills and estates — Procedure — Summary judgment — Summary judgment motion grossly disproportionate way of attempting to dispose of will challenge involving modest estate — Case management judge limiting pre-hearing discovery and directing short hybrid trial.

The applicants sought to set aside a will. The estate was modest. The case management judge dealt with a number of issues, including the respondent's request for a date for the hearing of a summary judgment motion.

Held, the request should be denied.

A summary judgment motion would be a grossly disproportionate way of attempting to dispose of this proceeding. Moreover, credibility issues would be in play and some viva voce evidence would be required. The most proportionate way to dispose of the proceedings was to limit pre-hearing discovery and to direct a short hybrid trial.

Cases referred to

Hryniak v. Mauldin, [2014] S.C.J. No. 7, 2014 SCC 7, 366 D.L.R. (4th) 641, 453 N.R. 51, J.E. 2014-162, 314 O.A.C. 1, 27 C.L.R. (4th) 1, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1; Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17, 279 D.L.R. (4th) 513, 361 N.R. 1, J.E. 2007-874, 224 O.A.C. 330, 32 E.T.R. (3d) 1, 37 R.F.L. (6th) 237, EYB 2007-118938, 156 A.C.W.S. (3d) 502; Smith Estate v. Rotstein, [2010] O.J. No. 3266, 2010 ONSC 4487, 59 E.T.R. (3d) 279 (S.C.J.); Traitses v. Traitses Estate, [2014] O.J. No. 1579, 2014 ONSC 2102 (S.C.J.)

RULINGS on various issues.

P. Starkman, for applicants.

S. Fleury, for Waldo Martin.

D. Rose, for Susan Coombs.

D.M. BROWN J.: — [page381]

I. A "Will-Challenge-in-a-Modest-Estate" Type of Case

1The fact scenario presented by this will challenge case is seen frequently on the Toronto Region Estates List.

2Lorraine Coombs died on April 27, 2012. Her last will was made December 22, 2009 (the "will"). The respondent, Waldo Martin, was the solicitor who prepared that will.

3In her final years, Lorraine Coombs lived with one of her four daughters, Susan Coombs, in a house which she, the testatrix, owned. Under the will, her two applicant daughters, Diane Fergueson and Charlene Coombs, each received $60,000. A respondent daughter, Donna Rivers, received $15,000. The residue went to the respondent Susan Coombs.

4According to the application for a certificate of appointment of an estate trustee, at the time of her death Lorraine owned personally worth about $366,000 (mainly cash and investments) and one house valued at $390,000 as of the time of the August 2012 certificate application. In other words, a modest estate of $756,249.

5Diane and Charlene seek to set aside the will on the basis of lack of testamentary capacity, lack of understanding of the will's contents and undue influence, in this case allegedly by Susan. They also allege that Susan has treated as her own property the contents of the joint accounts she had with her mother at the time of death, whereas the presumption at law is that those accounts, originating as they did with Lorraine's funds, are held by Susan on a resulting trust for the benefit of the estate: Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17.

6On January 25, 2013, over 14 months ago, Pollak J. granted the standard form of order for directions commonly used in the Toronto Region for will challenge cases. The order mandated the completion of examinations for discovery and the fulfillment of undertakings by May 31, 2013. As too often happens in these sorts of will challenge cases, the parties ignored that judicial timetable. As of today, examinations for discovery have yet to occur.

7Motions have been proposed and prepared. Late last year, the applicant sisters brought a motion to preserve the funds in the joint accounts until the trial of their will challenge. Directions for the hearing of the motion were given by a judge on January 9, 2014, and the parties appeared before me on March 11, 2014 to schedule not only that motion, but a counter-motion for summary judgment which Susan proposed to bring. At that time, I brought the proceeding under case management, issued [page382] my standard case management directions (see Traitses v. Traitses Estate, [2014] O.J .No. 1579, 2014 ONSC 2102 (S.C.J.)), and directed this case conference.

8I thank counsel for submitting very helpful case conference briefs which enabled me to understand the issues in this case and the divergent views amongst the parties about how to proceed. My case management orders are set out below.

II. Productions and Undertakings

9Most medical records have now been obtained. Susan's outstanding undertakings must be fulfilled no later than May 20, 2014.

III. Examinations for Discovery

10As mentioned, the parties did not conduct examinations within the timeframe ordered by Pollak J. However, in the context of the applicants' motion for the preservation of the joint accounts, cross-examinations were conducted of both Diane and Susan. I see no need for full examinations for discovery of those two sisters. Instead, the applicant sisters and the respondent sisters may submit written interrogatories of up to 30 questions of the other side collectively (with each sub-question constituting a question). Written interrogatories shall be exchanged no later than April 18, 2014, with written responses to be delivered by May 20, 2014. An examination for discovery of up to two hours may be conducted of the solicitor, Waldo Martin, on or before May 20, 2014, but only if he has not already been cross-examined.

IV. Motion to Preserve the Joint Account

11I strongly encourage the parties to settle this issue. If they cannot, I have set aside 30 minutes to hear the motion at 9:00 a.m. on Wednesday, April 30, 2014. Most of the motion materials already have been filed. Factums must be delivered no later than April 23, 2014.

V. Form of Hearing for Final Disposition on the Merits

12Susan requested a date for the hearing of a summary judgment motion. I refused to give one out. In Hryniak v. Mauldin, [2014] S.C.J. No. 7, 2014 SCC 7, the Supreme Court of Canada stated, at para. 73 of their reasons:

A motion for summary judgment will not always be the most proportionate way to dispose of an action. For example, an early date may be available for a short trial, or the parties may be prepared to proceed with a summary [page383] trial. Counsel should always be mindful of the most proportionate procedure for their client and the case.

[Emphasis added]

13To countenance the bringing of a summary judgment motion in this modest will challenge case would be to countenance a grossly disproportionate way to attempt to dispose of a proceeding, for two basic reasons. First, this is a modest estate. Summary judgment motions are expensive. In a modest case like this, the costs of a summary judgment motion would risk "blowing the bank", likely without tangible results. I say that because, secondly, significant credibility issues will be in play at the final hearing. Some viva voce evidence will be required to adjudicate the conflicting versions of the last years of mother's life which the two antagonistic daughters proffer -- they both can't be right; one is not telling the truth.

14My experience with these modest, "one house" estate will challenge cases -- which one often sees in Toronto -- has led me to conclude that the most proportionate way to dispose of such proceedings is to limit pre-hearing discovery and to direct a short hybrid trial. That is what I have done. As I informed counsel at yesterday's case conference, a three- to four-day trial of this proceeding will take place starting on September 8, 2014.

15At the present time in the Toronto Region, trials of five days or less are available virtually for the asking -- I could have assigned a late May 2014 trial date for this case. In my view, sending these second-generation sibling-rivalry-will-challenge-in-modest-estates cases to a quick trial not only represents the most proportionate way to deal with this type of legal dispute, but I think the judiciary is under an obligation to our local -- and increasingly aging -- community to develop a mechanism by which to deal quickly, but fairly, with these types of will challenges. They will only increase in number over the coming decade as the baby boomer generation begins to pass away.

16As to the format of the short trial, I accept the submissions of applicants' counsel that a hybrid form of hearing should be used. Any party who intends to testify at trial must file an affidavit which will serve as his or her evidence-in-chief at trial. Time-limited viva voce cross-examinations will be scheduled. As to the evidence from non-party witnesses, the parties should attempt to secure affidavits from them, but I recognize that might not be possible in each case. Where it is not, the party must serve a detailed "will say" of the anticipated evidence from the non-party witness. [page384]

17All such affidavits and "will say" statements must be served no later than June 13, 2014.

18Counsel shall book a 45-minute trial management conference before me for some day during the weeks of June 16 or 23, 2014, starting sometime after 3:00 p.m. in the afternoon. At that conference, I will set the time limits for cross-examinations at the trial.

19The applicants must deliver their trial record no later than April 30, 2014.

20I dispense with the need for a mandatory mediation in this case. At this point of time, the hostility between Diane and Susan would make such a mediation unproductive. However, it may well be that as the parties begin to prepare for the trial which I have ordered, their focus may change as their pocketbooks begin to sing a bit more loudly, and mediation may become a more attractive option. If it does, then I leave it to counsel to arrange for a private mediation at the appropriate time.

21I would conclude by observing that given the nature of the allegations each side of the family is levelling against the other, the losing party may stand exposed to paying an award of elevated costs to the winning party. Where no reasonable basis for a will challenge exists, elevated costs have been awarded: Smith Estate v. Rotstein, [2010] O.J. No. 3266, 2010 ONSC 4487 (S.C.J.), paras. 50 and 51. By the same token, if the diversion of estate assets to personal use is established at trial, elevated costs may be awarded against that losing party. Both sides of the family should not lose sight of their potential cost exposures.