Lipiec v. Lipiec, 2021 ONSC 6292

COURT FILE NO.: CV-20-2183

DATE: 20210922

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Tony Lipiec v. Maria Lipiec, personally and in her capacity as Estate Trustee for the Estate of Stanizlaw Lipiec also known as Stanley Lipiec

BEFORE: LEMAY J

COUNSEL: Joseph Figliomeni for the Plaintiff

Marek S. Malicki for the Defendant

HEARD: July 30, 2021

ENDORSEMENT

1This is a motion for the disclosure of the complete will of the deceased. The Plaintiff in this action is the son of the deceased by his first marriage. The Defendant is the deceased’s second wife. It is clear from the materials that were filed that there is a great deal of animosity between the Defendant and the Plaintiff.

2There is also some procedural history in this matter, which originally started as an action rather than a motion for directions. I am treating the issue before me as a motion for directions.

3Under the deceased’s will, the Plaintiff received a legacy of $20,000.00. However, the Plaintiff may dispute both the will and the legacy that he has received, as he believes he was promised more by the deceased. The Plaintiff seeks production of the will.

4Counsel for the Defendant argues that the will should not be produced as it is not going to be probated. There are no assets in the estate because everything passed by way of joint right of survivorship.

5Section 9 of the Estates Act provides a broad discretion for the Court to order production of a testamentary instrument. This discretion is not dependent on a lawsuit being pending before the Court.

6In this case, the Plaintiff is mentioned in the will. The Defendant’s argument that the document should not be produced because it does not matter is without merit. The Plaintiff is entitled to satisfy himself as to what the will contains, and he is clearly a party with a potential interest in the estate. It may also be open to the Plaintiff to argue that the will should be set aside, depending on the contents of the will.

7The parties also addressed the issue of costs. It is not yet clear to me whose position on this motion is more reasonable. In particular, I note that the fact that this proceeding was started as an action has potentially complicated the adjudication of this issue. As a result, costs are reserved to the judge hearing the next step in the Application.