COURT FILE NO.: CV-20-00005136-00ES

DATE: 20210125

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF ABY REUBEN MOSES, deceased

BETWEEN: REUBEN MOSES, Applicant

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

BEFORE: Mr. Justice Cavanagh

COUNSEL: Ranjan Das, for the Moving Party (Respondent) Rosy Moses Catherine Francis for the Moving Party (Respondent) Rachel Moses

Gregory Sidlofsky, for the Responding Party (Applicant) Reuben Moses

HEARD: January 7, 2021

ENDORSEMENT

Introduction

[1] The within application is brought by the applicant (responding party on this motion), Reuben Moses, seeking a declaration that a will made in 2019 by his deceased father, Aby Moses, is invalid. The respondents, moving parties on this motion, move to dismiss the application on the ground that the applicant lacks status to bring it.

[2] The moving parties are Rosy Moses, personally and in her capacity as Estate Trustee of the Estate of Aby Moses, and her daughter, Rachel Moses. Reuben Moses is the son of Aby and Rosy Moses, and Rachel’s brother.

[3] I will refer to the parties and to Aby Moses, for convenience, by their first names.

[4] Three months before his death, Aby executed what purports to be his Last Will and Testament and secondary will (the “2019 Will”). Aby left his entire estate to Rosy if she was alive 30 days after his death.

[5] On their motion, Rosy and Rachel rely on another document they allege is a will executed by Aby on December 24, 1996 (the “1996 Will”). Under the 1996 Will, Aby also left his entire estate to Rosy if she was alive 30 days after his death. The moving parties contend that Reuben has no interest in the outcome of his challenge to the 2019 Will because even if it were found to be invalid, the 1996 Will would apply and, under this will, Aby also left his entire estate to Rosy. The moving parties submit that, as a result, Reuben has no financial interest in Aby’s estate and lacks status to bring this application.

[6] For the following reasons, I grant the motion.

Background Facts

[7] Aby was married to Rosy who survived him and is still alive. Reuben and Rachel are their only children.

[8] For many years before Aby died, Reuben worked with Aby in the family hardware business, Metro Hardware and Maintenance Inc. (“Metro”) which carries on business from property in Toronto (the “Property”) owned by 2188661 Ontario Inc. (“218”). Reuben began working at Metro in 1988 and, after assuming managerial responsibilities in 1996, continued to work with Aby until his death.

[9] Aby was the majority (preferred and voting) shareholder of Metro. Reuben (60%) and Rachel (40%) hold the common shares of Metro. Aby and Rosy were each 50% shareholders of 218. Upon Aby’s passing, under the 2019 Will, Rosy became the 100% shareholder of 218.

[10] On July 12, 2019, Aby died after a period of illness that had prevented him from performing significant work at Metro for years. On April 15, 2019, three months prior to his death, Aby executed the 2019 Will. Under the primary will, Aby bequeaths his primary estate, which does not include his interest in Metro or 218, to Rosy. Under the 2019 Will, if Rosy predeceased Aby, Aby would have left his primary estate to Rachel and Rachel’s children without a bequest to Reuben or Reuben’s children. The secondary will bequests the entire residue of Aby’s secondary estate, including his interest in Metro and his shares in 218, to Rosy, but if she predeceased him, then to Rachel alone. The 2019 Will provides that in the event Rosy passed away first or within 30 days of Aby’s death, Reuben would have the opportunity to purchase Aby’s shares of Metro for $800,000, payable over two years.

[11] Reuben has commenced a separate civil action in which he claims, among other things, a proprietary interest in all the business and assets of Metro and a 50% interest in the Property based on promises alleged to have been made by Aby that, upon his death, Reuben would own the entire Metro business and that 50% of the Property would be given to Reuben.

[12] In the within application, Reuben seeks a declaration that the 2019 Will is invalid and of no force or effect.

[13] On this motion, Reuben has provided evidence that Aby repeatedly promised Reuben that he would inherit the business and Aby’s half interest in the Property. Reuben has provided evidence that in recognition of Aby’s promise to Reuben, he gave Rachel significant amounts of money from the business and transferred valuable properties into her name to equalize the benefit that that Reuben and Rachel would receive from his estate. Reuben has provided evidence from Rosy’s brother that Aby often told him he was being coerced by Rachel and Rosy and found it difficult to stand up to them and that he would often give in to their demands to avoid conflict with them. Reuben provided evidence of Aby’s health in the last years of his life and that Aby relied on Rosy to take care of him and administer his medications. Reuben provided evidence that Rosy threatened to kick Aby out of the house and/or stop caring for him during this period if he did not comply with her demands.

[14] Reuben asserts in the within application that Rosy and Rachel exerted undue influence over Aby by forcing him into signing the 2019 Wills, the consequences of which he may not have fully understood given his condition at the time.

[15] After Aby’s death, Reuben engaged in negotiations with Rosy about the business and assets of Metro and the 50% interest in the Property. These negotiations did not lead to a resolution. Reuben left Metro and set up a competing business. Reuben and his wife commenced the civil action in June 2020. In this action, Reuben relies on the legal doctrine of proprietary estoppel and also claims that the defendants were unjustly enriched and hold Aby’s interest in Metro and half the Property in a constructive trust for the benefit of Reuben.

[16] In support of this motion, Rachel provided evidence of the 1996 Will. Under the 1996 Will, Aby left his entire estate to Rosy, in the event that she was alive within 30 days of his death, with a gift-over of half the residue to each of Reuben and Rachel in the event Rosy predeceased Aby or died within 30 days of his death. At that time, Reuben and Rachel were both in their 20s. Rosy was 51 years old and Aby was 10 years older.

Analysis

[17] The moving parties submit that Reuben has failed to present sufficient evidence to show that he appears to have an interest in Aby’s estate. They submit that Reuben has nothing to gain by challenging the 2019 Will because, even if it were to be found invalid, the 1996 Will would apply and, under this will, Aby also left his entire estate to Rosy.

[18] Reuben submits that he has provided ample evidence to meet the test for standing. He also submits that he claims in his civil action to have an interest in Metro and the Property, property affected by the 2019 Will, and that he has standing pursuant to s. 23 of the Estates Act R.S.O. 1990, c. E.21.

Has Reuben provided sufficient evidence to show that he appears to have a financial interest in Aby’s estate and therefore has standing?

[19] In support of this motion, the moving parties rely on Rule 75.06(1) of the Rules of Civil Procedure which reads:

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.

[20] The moving parties submit that Reuben is not a person who appears to have a financial interest in Aby’s estate and, therefore, he lacks standing to bring the application to challenge the 2019 Will.

[21] In Smith v. Vance, [1997] O.J. No. 6534 (Div. Ct.), the appellants appealed a decision striking their Notice of Objection and dismissing their cross-motion for directions in respect of their challenge to the testator’s will. The Divisional Court allowed the appeal and, in its reasons, addressed the meaning of the words “any person who has a financial interest in the estate” as they appear in what is now Rule 75.06(1):

Financial interest is not defined in the Rules of Civil Procedure. In the absence of any limiting definition, those words must be taken in their natural meeting of an interest by way of money or property or other assets having monetary value. Blacks Law Dictionary (5th Edition) defines financial interest as:

An interest equated with money or its equivalent.

With respect to both Rule 75.03(1) and s. 23 of the Estates Act, where the stated interest is clear and obvious (for example, the claimant is a named beneficiary), there should be no difficulty recognizing the status of that person as a party. Different considerations apply where the claimant is one who pretends to have an interest. The word pretend is not to be interpreted as claiming or professing falsely or deceptively but rather as alleging or laying claim to an interest in law. One who pretends to have an interest is not required to prove that he or she has a financial interest before being permitted to become a party under s. 23 of the Estates Act. If such were the case, the inclusion, within s. 23 of entitlement of those persons pretending to have an interest would be redundant and superfluous.

However, claimants must do more than simply assert an interest. They must present sufficient evidence of a genuine interest and meet a threshold test to justify inclusion as a party. It need not be conclusive evidence at that stage but must be evidence capable of supporting an inference that the claim is one that should be heard.

If the evidence offered by an objector is capable of supporting an inference that the claim raises a genuine issue and thus is one that should be heard, the objector is entitled to standing and should be granted permission to be added as a party. Claimants passing that threshold test should not be denied status simply because they cannot produce a copy of the will under which they claim to be a beneficiary or because of the perceived difficulty of setting aside a will or series of wills on grounds of incapacity. The onus of proof on the issue of capacity is upon the persons propounding the will or wills in question and that onus passes to the objector only with respect to proof of a lost or destroyed will.

[22] In W.(W.) v. Y.(Y.), 2016 ONSC 2387, Gilmore J. held, at para. 21, that the threshold for determining whether an applicant has shown a financial interest in the deceased’s estate is a low one, and the fact that an applicant may have a financial interest in the event that the court makes certain findings in her favour is sufficient for the applicant to apply for directions. Gilmore J., at para. 33, citing Smith v. Vance, held that the evidence required for the applicant to move forward need not be conclusive, but need only be capable of supporting an inference that the claims raise a genuine issue which should be heard by the court.

[23] In Adams Estate v. Wilson, 2020 SKCA 38 the Saskatchewan Court of Appeal addressed the concept of standing in estate litigation. In that case, the applicant claimed that he orally agreed to work for the deceased’s ranching operation on a full-time, ongoing basis and the deceased agreed that he would inherit her ranching operation when she died. The deceased made a will but did not leave her estate to the applicant. The applicant commenced civil proceedings against the deceased’s estate to enforce the oral agreement. Separately, he commenced an application to have the will declared invalid. The Chambers judge held that the applicant had standing to bring the application to challenge the will. This decision was appealed.

[24] The Saskatchewan Court of Appeal cited Rule 16-46 of the Queen’s Bench Rules which permits an application to challenge a will by a person who “… is or may be interested in the estate.” The Court noted that applicant bore the evidentiary and persuasive burden of establishing standing and held, citing Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, that there is an initial presumption that a will is valid where it has been duly executed in accordance with statutory formalities and in the absence of suspicious circumstances. The Court held, citing Spence v. BMO Trust Company, 2016 ONCA 196 (leave to appeal to the Supreme Court of Canada refused, 2016 CanLII 34005), that the initial presumption of validity is grounded on the principle of testamentary freedom. The applicant sought to challenge the presumption of validity by applying for an order requiring the executor to prove the will in solemn form and, in the process, to challenge the deceased’s capacity to make the Will. The Court observed that this position implicated the principle of testamentary freedom and, as a result, it was important to determine at the outset under what circumstances persons in the position of the applicant are entitled to attempt to challenge a Will. The Court, citing Neuberger Estate v. York, 2016 ONCA 191 (leave to appeal to the Supreme Court of Canada refused, 2016 CanLII 60508), also noted the principle that the law must ensure that the testator’s true wishes are reflected in the law’s approbation of a testamentary document. The Court held that the concept of standing in estate litigation attempts to mediate the interplay of these two principles.

[25] The Court in Adams Estate then addressed whether the applicant had standing and, at para. 65, explained that the concept of standing implies that a claimant who asserts standing has something to gain. The Court held that “[s]tanding is ultimately a question of whether a party will be allowed to use the resources of the administration of justice in the service of the affirmation of some legal right that he or she seeks to prove” and explained at paras. 69 and 76-77:

[69] In the context of estate litigation, the requirement that a party have a stake in the proceedings makes eminent sense considering the additional overlay of having to resolve who may interfere with devolution of the property of the deceased and otherwise challenge a will, and thereby put the executor to the time and expense of proving the will in solemn form. Historically, a financial or legal interest of some sort has been intrinsic to standing to challenge a will.

[76] Based on all the foregoing, I conclude that standing under Rule 16-46 requires having either a legal or financial interest in the eventual outcome of the matter. Put another way, the legal rights or financial position of the person asserting standing must be affected by the result of the proceeding that is facilitated by a determination of standing. This principle applies equally to those claiming that they may have an interest in the estate as well as those having an interest in the estate.

[77] To conclude my analysis of the phrase who is or may be interested in Rule 16-46, this phrase properly interpreted requires that the interest or possible interest implicated by the Rule be one arising out of or be intrinsically connected to the estate and the devolution of the deceased’s property. The interest must be a legal or financial one. The person claiming standing must have a stake in, and be affected by, the outcome of any challenge to the will.

[26] The Saskatchewan Court of Appeal in Adams Estate held that the applicant had nothing to gain by creating an intestacy and, as a result, he lacked standing to bring the application to challenge the deceased’s Will. The appeal was allowed.

[27] The moving parties submit that Reuben has nothing to gain by challenging the 2019 Will because if the 2019 Will were to be found to be invalid, then Aby’s prior Last Will and Testament, the 1996 Will, would apply and, under the 1996 Will, Aby also left his entire estate to Rosy if she were still alive 30 days after his death. The moving parties submit that Reuben has no financial interest in the Aby’s estate and, as a result, he lacks standing to bring this application.

[28] Reuben submits that he has provided ample evidence capable of raising an inference of undue influence and suspicious circumstances in relation to the 2019 Will. As one of Aby’s surviving issue, Reuben would be entitled to a share in Aby’s estate on an intestacy in the event that an existing will is set aside. He submits that this is all that is required to establish the requisite interest or standing under the governing rules and legislation. Reuben submits that it would be inappropriate, premature, and contrary to the existing jurisprudence to disqualify him from pursuing the 2019 Will challenge proceeding on the basis of any perceived difficulty in setting aside the 2019 Will or by presuming that the 1996 Will can or will be proven in solemn form by the moving parties.

[29] Reuben submits that the authenticity of the 1996 Will is not before me today, and I should not presume on this motion that Rosy will be able to prove this Will in solemn form if Reuben is successful in challenging the 2019 Will. Reuben submits that it is premature to disqualify a claimant on the basis of a lack of financial interest under wills executed prior to the one subject to challenge and, rather, such a finding should await a determination of the validity of the will in question. In support of this submission, Reuben relies on McLaughlin v. McLaughlin, 2015 ONSC 3491 (ON SC).

[30] In McLaughlin, the Court considered whether the son of the deceased had standing to maintain the notice of objection to a certificate of appointment of estate trustee filed in respect of the will executed by his late mother in 2010. The objector was not named as a beneficiary under two prior wills of the deceased executed in 2002 and 1994. The basis for his assertion of a financial interest was that he was a beneficiary under her first will, executed in 1991, and would benefit under an intestacy. The Court addressed the question of standing and noted that the objector was not named as a beneficiary in the most recent will or the 2002 or 1994 wills. The Court, after citing authorities including Smith v. Vance, held at paras. 28 that “[a] notice of objection will be sustained where the objector establishes that he would have a financial interest in the event of an intestacy, where there is a challenge to the validity of a Will and there is no prior Will”. Although there were prior wills in that case, the Court went on to hold, at para. 29-30, that it was premature at that stage to disqualify the objector on the basis that he lacks standing and that “[s]uch a finding should await a determination as to which of the wills is the last will of the deceased”.

[31] In McLaughlin, the Court did not provide explanatory reasons for its finding that it was premature to disqualify the objector on the basis that he lacks standing. I do not agree that McLaughlin is authority for the general proposition that where a person dies leaving more than one will, the question of standing must be addressed only in relation to the will which is challenged, and whether the objector appears to have a financial interest in the estate of the deceased under a prior will must await the determination of the validity of the will which is subject to challenge.

[32] Reuben also relies on Smith v. Vance in support of his submission that it is premature to disqualify a claimant on the basis of lack of financial interest under a will executed prior to the one subject to challenge.

[33] In Smith v. Vance, the appellants based their claim to a financial interest in the estate which gave them standing to object to the testator’s will, in part, on an earlier destroyed will. The appellants relied on a letter written by the testatrix stating that they would be “main sharers” of her estate. After the letter, the testatrix executed a will and, on the same day, an earlier will was destroyed. The appellants alleged that the testatrix lacked testamentary capacity when she executed this will and, thus, lacked capacity to revoke any valid will existing on that date. One of the appellants provided evidence that several days before the prior will was destroyed and the new will signed, he wrote to the testatrix’s doctor expressing concern with respect to the testatrix’s mental abilities. The Divisional Court held that if the objector offers evidence that is capable of supporting an inference that the claim raises a genuine issue and thus is one that should be heard, the objector is entitled to standing and claimants passing that threshold should not be denied standing “simply because they cannot produce a copy of the will under which they claim to be a beneficiary or because of the perceived difficulty of setting aside a will or series of wills on grounds of incapacity”. The Divisional Court held that the appellants had met the threshold test by evidence capable of supporting an inference that they have a financial interest in the estate.

[34] I do not agree that Smith v. Vance stands for the general proposition which Reuben advances. In that case, there was evidence bearing on the capacity of the testatrix when the will subject to challenge was executed, and there was evidence that the prior will was destroyed. The Divisional Court accepted that this evidence was sufficient to satisfy the threshold test. The Divisional Court did not hold that where the question of whether an objector has a financial interest in an estate turns on an earlier will than the one subject to challenge, the objector is not required to meet any evidentiary threshold with respect to the prior will.

[35] In each case, the question of standing must be determined having regard to the evidentiary record before the court. The question is whether, on this evidentiary record, the person claiming to have an interest in the estate has satisfied the threshold test. See Olson v. Skarsgard Estate, 2018 SKCA 64, at para. 21.

[36] The moving parties argue that Rosy has no obligation to prove the 2019 Will in solemn form or apply for a grant of probate and, if the 2019 Will were to be declared invalid, she would have no obligation to prove the 1996 Will in solemn form or apply for a grant of probate. The moving parties tendered evidence on this motion to prove that if the 2019 Will were found to be invalid, the 1996 Will is presumptively valid and, therefore, Reuben lacks standing to bring his application.

[37] The document which purports to be the 1996 Will was, on its face, prepared by a lawyer, Bernard Papernick. Mr. Papernick died in 2015. The moving parties provided an affidavit from Felicita Ciampa who was Mr. Papernick’s legal assistant from 1991 until Mr. Papernick’s retirement in 2005 or 2006. In her affidavit, Ms. Ciampa states that she was his only employee during the years she worked for Mr. Papernick and she was very familiar with how he practised law and dealt with his clients. She states that he provided services to clients drafting wills and, during her employment, she routinely acted as one of the witnesses when clients signed wills at the office. Ms. Ciampa states that it was Mr Papernick’s standard practice to ensure that two witnesses were always present when a client signed a Will and that both witnesses signed the Will in the presence of the client. This was the practice she followed whenever she witnessed a client signing a Will.

[38] Ms. Ciampa confirmed that her signature appears on page 4 of the document that purports to be the Last Will and Testament of Aby dated December 24, 1996 as the second witness to the testator’s signature. Ms. Ciampa states that she recognizes the signature of the first witness as that of Mr. Papernick. Ms. Ciampa states that when this document was signed, it was not Mr. Papernick’s practice for affidavits of execution to be sworn following a Will signing. Mr. Papernick did not start preparing and executing affidavits of execution until approximately two years before his retirement.

[39] The moving parties also rely on Rachel’s affidavit. In her affidavit, Rachel states that she learned on August 7, 2020 from the lawyer representing the defendants in Reuben’s civil action that her brother was planning to retain a lawyer to challenge the 2019 Will. That evening, Rosy was at Rachel’s house for dinner and Rachel asked her whether she still had her and her father’s previous wills. Rosy told Rachel that she might have thrown them out. However, when Rosy returned home, she told Rachel that she still had the entire package, including the originals of her 1996 Will and Aby’s 1996 Will. Rosy gave Rachel the package over the weekend. According to Rachel’s affidavit, the package includes (a) the Last Will and Testament of Aby; (b) the Last Will and Testament of Rosy; (c) a Continuing Power of Attorney for Property of Aby; (d) a Continuing Power Attorney for Property of Rosy; (e) a Power of Attorney for Personal Care of Aby; and (f) a Power Attorney for Personal Care of Rosy. Rachel states that the documents are all originals, containing her parents’ original signatures, which she recognizes. Rachel states that she personally knew Mr. Papernick who was friendly with her father as his home/office was within walking distance of Metro and Mr. Papernick regularly visited Metro.

[40] Rachel later provided these documents to the law firm representing the defendants in the civil action commenced by Reuben. The law firm offered to produce the 1996 Will to counsel for Reuben for inspection.

[41] Reuben submits that there is no first-hand evidence of authenticity of the 1996 Will and no affidavit of execution. Reuben relies on the fact that the lawyer who prepared it is deceased and Ms. Ciampa attached only a copy of the 1996 Will, not the original, to her affidavit. Reuben notes that Ms. Ciampa said only that her signature and that of Mr. Papernick are on the signature page, but she did not swear to any direct knowledge or specific recollection of the execution of the Will by Aby. Reuben points out that Ms. Ciampa did not say that the document shown to her was anything but a copy, or that the pages that came before the signature page comprised the original Will. Reuben submits that Rosy did not provide affidavit evidence and was shielded from cross-examination, and the moving parties failed to put the best evidence forward concerning the authenticity of the 1996 Will.

[42] I am satisfied that the moving parties have established that if the 2019 Will were found to be invalid, the 1996 Will should be presumed to be valid. Rachel was given the document purporting to be her father’s 1996 Will by her mother who had kept this document with her own original 1996 Will and other related documents. Rachel identified her father’s signature on the 1996 Will. Ms. Ciampa identified her signature and the signature of Mr. Papernick as witnesses on a copy of the 1996 Will. Rachel has the original document, not a copy, which she has given to the lawyer representing the defendants in the civil action. Rachel gave evidence that Mr. Papernick was known to her father. The terms of the 1996 Will are not unusual and do not support an inference that the document purporting to be Aby’s 1996 Will is not authentic. There is no evidence that the 1996 Will was signed under suspicious circumstances.

[43] Reuben, as responding party, did not cross-examine Rachel or Ms. Ciampa or examine Rosy as a witness on this motion. Reuben did not provide affidavit evidence which undermines or calls into question the evidence upon which the moving parties rely.

[44] Reuben has not presented evidence that is capable of supporting an inference that the 1996 Will is not authentic or that it is invalid for any reason. If the 2019 Will were found to be invalid, the 1996 Will would apply and, under this Will, Aby also left his entire estate to Rosy. Reuben has failed to satisfy the low threshold of presenting sufficient evidence to support an inference that he appears to have a financial interest in Aby’s estate.

[45] Reuben does not have standing to bring the application under rule 75.06(1) of the Rules of Civil Procedure.

Does Reuben have independent standing under s. 23 of the Estates Act to bring the application?

[46] Reuben also submits that he has shown a sufficient basis to establish standing because he has an interest in property affected by the 2019 Will, the business and assets of Metro and a 50% interest in the Property, by virtue of his civil claim based on the doctrine of proprietary estoppel, which is independent of his will challenge application.

[47] Reuben relies on s. 23 of the Estates Act which provides:

Where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed, all persons having or pretending to have an interest in the property affected by the will may, subject to this Act and to the rules of court, be summoned to see the proceeding and may be permitted to become parties, subject to such rules and to the discretion of the court.

[48] In Adams Estate, at para. 52, the Saskatchewan Court of Appeal held that “an interest in an estate arises from an entitlement to share in the estate either by virtue of a will, other testamentary document, or by operation of law”. Reuben contends that he has a claim to an interest in Aby’s estate by operation of law due to his claims in the civil action. He submits that this claim is not affected by his status under the 1996 Will.

[49] In Smith v. Vance, the Divisional Court noted that s. 23 refers to an interest in property affected by a will, whereas rule 75.03(1) [the former rule] refers to any person who appears to have a financial interest in the estate. The Divisional Court addressed the meaning of the word “pretend” as used in s. 23, and interpreted it as meaning “alleging or laying a claim to an interest in law”. The Divisional Court, at para. 9, held that a person who pretends to have an interest in property affected by a will is not required to prove that he or she has a financial interest before being permitted to become a party under s. 23 of the Estates Act. The Divisional Court held that claimants must do more than simply assert an interest, and must present evidence capable of supporting an inference that the claim is one that should be heard. Reuben relies on this passage to support his submission that even if he does not have standing under rule 75.06(1), s. 23 of the Estates Act gives him an independent basis for standing to bring this application.

[50] Section 23 of the Estates Act is subject to the rules of court and to the discretion of the court. It applies where a proceeding is commenced for proving a will in solemn form or for revoking probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed. Here, no proceeding was commenced to prove the 2019 Will in solemn form. No proceeding was commenced for revoking probate of the 2019 Will. No application was made for a grant of probate. Other than the application Reuben commenced to challenge the 2019 Will, where the question of standing is at issue, there is no contentious cause or matter where the validity of the 2019 Will is disputed.

[51] Whether Reuben does or does not have an interest in the assets of Metro or in the Property based on the doctrine of proprietary estoppel will be decided in his separate civil action. The outcome of this action does not depend on the validity or invalidity of the 2019 Will. I do not hold that s. 23 of the Estates Act may not, in any circumstances, provide a statutory basis separate from rule 75.06(1) for standing for a person to become a party and bring an estate matter before the court. However, I do not regard the circumstances upon which Reuben relies on this motion, his civil claim based on proprietary estoppel, to justify a finding that he has standing to bring this application to challenge the 2019 Will. I decline to exercise my discretion to so find.

[52] I conclude that Reuben’s claim to an interest in property of Aby’s estate in a separate civil action does not give him standing pursuant to s. 23 of the Estates Act to challenge the 2019 Will where he would otherwise lack standing to do so.

[53] The moving parties also seek to strike out or dismiss the application on the ground that it was brought for an ulterior purpose, to assist the applicant to prove his claims in the civil action, and that this constitutes an abuse of process. Given my conclusion on the question of standing, it is not necessary for me to decide the abuse of process issue.

Disposition

[54] For these reasons, this motion is granted. The within application is dismissed.

[55] If the parties are unable to resolve costs, the moving parties may make written submissions (not to exceed three pages excluding costs outline) within 15 days. The responding party may make responding submissions (also not to exceed three pages excluding costs outline) within 15 days thereafter. The moving party may make brief reply submissions, if so advised, not to exceed one page, within five days thereafter.

Cavanagh J.

Date: January 25, 2021