Wilson v. Mayers, 2025 ONSC 3124
COURT FILE NO.: CV-25-00742538-00ES
DATE: 2025-05-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kelly Maurica Wilson and Mark Anthony Mayers in their capacity as estate trustee with a will for the estate of Vernon Eversley Mayers (Deceased), Applicants
AND: Denise Mayers in her capacity as the estate trustee without a will for the estate of Vernon Eversley Mayers (Deceased), Respondent
BEFORE: Papageorgiou J.
COUNSEL:
Esther Mendelsohn, for the Applicant, Kelly Maurica Wilson
James Dunphy, for the Applicant, Mark Anthony Mayers
Parjot Benipal and Dave Deonarain, for the Respondent, Denise Mayers
HEARD: 2025-05-13
Endorsement
Overview
[1] The Applicants bring a motion for the following relief:
a. An order revoking the Certificate of Appointment of Estate Trustee Without a Will pursuant to r. 75.04 of the Rules of Civil Procedure granted to Denise Myers (“Denise”) in respect of the Estate of Vernon Eversley Mayers (the “Deceased”). At the hearing, Denise consented to this.
b. An injunction restraining Denise from exercising any powers under the Certificate of Appointment.
c. A Mareva injunction restraining Denise from transferring, alienating, dissipating, assigning or encumbering assets that were once the Deceased’s property, whether such assets are owned jointly or solely and including certain specified assets and accounts.
d. A certificate of pending litigation over certain real property that they say was improperly transferred to Denise.
e. A preservation order over all Estate assets.
f. An order that Denise provide a sworn statement regarding the nature, value, and location of the Deceased’s assets. At the hearing, Denise consented to this.
[2] The Applicants’ position is that Denise fraudulently obtained a Certificate of Appointment Without a Will when there was a Will, and that she knew about the Will at the time she obtained the Certificate of Appointment Without a Will.
[3] Counsel attended on behalf of Denise and requested an adjournment because they were only able to prepare short materials as they say they were only recently retained. However, they have been involved for some time as there is correspondence in the file that supports this. I have reviewed the materials filed by Denise and they did address the issues raised by the Applicants.
[4] As a result, I decline to grant the adjournment which in my view will only serve to increase the costs of the parties without any different outcome.
Decision
[5] For the reasons that follow, I grant most of the relief sought.
Issues
[6] The issues in this application are as follows:
a. Issue 1: Do the Applicants meet the test for a Mareva injunction?
b. Issue 2: Should an injunction be granted restraining Denise’s use of the Certificate of Appointment?
c. Issue 3: Do the Applicants meet the test for a CPL?
d. Issue 4: Do the Applicants meet the test for a preservation order?
Analysis
Issue 1: Do the Applicants meet the test for a Mareva injunction?
The Legal Test for a Mareva Injunction
[7] The requirements for a Mareva Injunction are as follows:
a. a strong prima facie case on the merits of the main Action;
b. grounds for believing that the defendant has assets in the jurisdiction;
c. the defendant is removing or there is a real risk that the defendant is about to remove assets from the jurisdiction or is otherwise disposing of such assets in a manner that is out of the normal course;
d. the plaintiff will suffer irreparable harm if the Order is not made and that the balance of convenience favours it;
e. an undertaking as to damages: Pugliese v. Acruri, 2011 ONSC 2951 at para 63.
[8] I am satisfied that the Applicants meet the above test.
Strong prima facie case
[9] The Applicants say that there is no need to demonstrate a strong prima facie case as this motion was on notice. However, the Applicants have still established this higher threshold in showing that Denise has improperly and fraudulently obtained a Certificate of Appointment Without a Will.
[10] The Deceased died on March 12, 2025.
[11] The evidence establishes that there was a Will that appointed the Applicants as estate trustees. The Will disposed of all of the Deceased’s real and personal property.
[12] Denise was the surviving spouse, and the evidence establishes on a balance of probabilities that she knew about the Will.
[13] She received a text message that the Deceased’s lawyer would be attending to have him execute a will and she acknowledged this. Further, on March 24, 2025, Denise was notified that her presence was required for the reading of the Will. Denise filed a notice of objection on March 29, 2025 where she stated that she was aware that the Deceased may have executed a Will while lacking capacity or being under undue influence.
[14] Notwithstanding her admitted knowledge of the Will, on the very same day that she filed her objection, Denise applied for the Certificate of Appointment of Estate Trustee Without a Will. To support her application, Denise made false sworn declarations that she carefully searched for a Will, and that she believed the Deceased did not have a Will. This affidavit is inconsistent with the notice of objection she filed that day.
[15] Relying upon these false declarations, the Estate Registrar for Ontario issued a Certificate of Appointment of Estate Trustee Without a Will.
[16] The Certificate was issued to Denise on March 31, 2025. On the same day Denise obtained the Probate Certificate.
[17] In her response to this proceeding, Denise says that the Will produced by the Applicants is highly suspect and that the signature on the Will is not how the Deceased signed his name.
[18] Denise says that in 2024 the Deceased was diagnosed with stage 4 brain cancer which made it nearly impossible for him to walk and complete daily tasks. She took care of him. She says that as of December 2024, he was unable to carry out conversations for the most part. She says that the Will produced by the Applicants shows that it was signed on February 11, 2025 which was a month before his death and that as his caretaker she knows he would not be able to read, write or comprehend anything he signed.
[19] Here I do note that the Deceased executed the Will with a simple “X” which was not how he signed other documents produced. There was however a lawyer present who prepared and also witnessed his execution of the Will.
[20] Denise also references the fact that she and her husband held title to the Denby Property and the Condo Property as joint tenants such that she would be entitled to take them by way of survivorship. She also says that under the Family Law Act, she may be able to assert entitlement to the Denby Property in any event because she contributed to it significantly in terms of carrying costs and renovations.
[21] However, the Denby and Condo Properties are also bequeathed to the Applicants in the Will.
[22] The issue between the registration of the Properties in joint tenancy and the fact that they were bequeathed to the Applicants must be addressed as well as concerns about the Deceased’s capacity and possible undue influence.
[23] Denise may ultimately prevail on these issues and this decision should not be taken to be any reflection or determination of these issues.
[24] Nevertheless, the concerns that Denise has about the validity of the Will do not excuse her conduct in seeking the Certificate of Appointment Without a Will and in filing an affidavit that says she was unaware of any will in support of that when she was clearly aware of the Will.
[25] If Denise had concerns about these matters, she could have sought the appointment and referenced the Will and said that she believes it was invalid. Then that issue could have been addressed in the application for the appointment.
Risk of Disposition
[26] The risk of removal or dissipation can be established by inference, and that inference can arise from the circumstances of fraud itself, taken in the context of all of the surrounding circumstances: Sibley & Associates LP v. Ross et al, 2011 ONSC 2951 at para 63.
[27] Immediately upon receiving the improperly issued certificate, Denise transferred title to the Denby and Condo Properties into her sole name pursuant to her claim to a right of survivorship. Denise is asserting that she is now the sole owner. As noted, both Properties were also devised to others under the Will. Mark claims that the Condo Property was specifically devised by the Deceased to him because Mark claims, and the Will references, that he had paid the Condo fees for the Property over 20 years and invested significant sums in renovating it. Denise immediately sought to evict Mark, and Mark's minor daughter.
[28] Denise transferred condo fee payments into her name. Denise has also been using the Deceased’s email address.
[29] The Applicants registered cautions on title to these Properties to protect the interests of all the estate beneficiaries, including Mark's right to reside in the Condo.
[30] Denise, through her lawyer, confirmed that the issued Certificate has also been provided to the financial institutions holding the estate cash and investments. At the date of death, the Applicants are aware that their father had approximately $225,000 in these institutions.
[31] The Applicants have taken steps to alert financial institutions that hold the Deceased’s assets that the Certificate has been improperly issued to Denise and requesting that no funds be disbursed to her. There has been no response that would reassure the Applicants.
[32] Based upon Denise’s self-help conduct, and actions in transferring the Condo Property and the Denby Property to herself, in circumstances where she was aware of the Will and the dispute over these, I infer that there is a strong risk of further dissipation of the Deceased’s Estate that she may still have possession or control over, and that there will be irreparable harm to the Applicants and the Estate if she does so.
Assets in the Jurisdiction
[33] There are clearly assets in the jurisdiction which are the Deceased’s Estate.
Balance of Convenience
[34] I note that the Mareva injunction sought is only in respect of Estate assets. It will not impact her ability to use any of her own money or bank accounts or investments. I note however, for reasons I set out below with respect to the CPL, the Mareva injunction will not apply to the Denby Property even though it is alleged to be an Estate asset.
[35] The balance of convenience overwhelmingly favours the granting of the injunction because she has voluntarily agreed to revocation of the Certificate of Appointment Without a Will. As a result, she legally has no right to exercise any control over Estate assets in any event. Denise's living arrangements would not be disturbed by the granting of the injunction, whereas if the injunction is not granted, Mark's living arrangements may be prejudiced.
[36] Finally, the fact that Denise has voluntarily now consented to the Certificate of Appointment Without a Will being vacated does not mean a Mareva injunction is not required. She has already had access to all the Estate assets which were under her power and control until this motion.
[37] She has already distributed certain assets alleged to be Estate assets to herself.
Issue 2: Should an injunction be granted restraining Denise’s use of the Certificate of Appointment?
[38] I do not grant the injunction restraining Denise from exercising any authority pursuant to the issued Certificate because she has agreed to its revocation.
Issue 3: Do the Applicants meet the test for a CPL?
The usual test for a CPL
[39] The Applicants seek a CPL over the Condo Property and the Denby Property.
[40] The usual test for granting leave to register a CPL is well established in the relevant jurisprudence. It requires the determination of whether there is a triable issue in respect of the moving party’s claim to an interest in the property: 2254069 Ontario Inc. v. Kim, 2017 ONSC 5003, at para. 21; Pacione v. Pacione, 2019 ONSC 813, at para. 20.
[41] In Royal Bank of Canada v. Azkia et al, 2019 ONSC 5894, Master Sugunasiri (as she then was) set out the most relevant considerations for a CPL:
a. The test on a motion for leave to issue a CPL is the same as the test on a motion to discharge a CPL.
b. The threshold in respect of the "interest in land" issue as set out at section 103(6) of the CJA is whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed.
c. Factors the court can consider include (i) whether the plaintiff is a shell corporation, (ii) whether the land is unique, (iii) the intent of the parties in acquiring the land, (iv) whether there is an alternative claim for damages, the ease or difficulty in calculating damages, (vi) whether damages would be a satisfactory remedy, (vii) the presence or absence of a willing purchaser, and (viii) the harm to each party if the CPL is or is not removed with or without security.
d. The governing test is that the court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted.
[42] Even though Denise has raised issues regarding the validity of the Will, and the Applicants’ entitlement to the bequests which were held in joint tenancy, the Applicants, as beneficiaries who were bequeathed the Condo Property and the Denby Property in the Will, have met the low threshold in showing that there is a triable issue as to whether they have an interest in land.
[43] I am also satisfied that the Condo Property is sufficiently unique as Mike was shown to be a beneficiary and the Applicant Mark lived at the Condo Property with his daughter. He says that he paid the expenses. If the property is sold, the testamentary devise, if proven to be valid, fails.
[44] There is no other claim for damages.
[45] Here I also note, as above, that just because Denise has agreed to the vacation of the Certificate of Appointment Without a Will, this does not mean that the CPL should not be granted as the Condo is currently in her name. Even without the Certificate of Appointment, she could dispose of it if there is no CPL.
[46] However, the balance of convenience does not favour granting the CPL over the Denby Property. The evidence is that Denise lived in this Property with the Deceased as their matrimonial home and that she contributed to the upkeep of the Property. As noted, it was held in joint tenancy. Denise also alleges that she is responsible for $504,373 of the mortgage and has been paying the carrying costs for over 15 years. She also contributed to the taxes and renovation.
[47] She took care of the Deceased during his illness. Even though she is 70 years old, because of her finances she still works part-time as a teacher at a Montessori school.
[48] She says if she is not able to access the equity in the Denby Property, she will be unable to pursue her claim to have the Will declared invalid.
[49] Additionally, the Applicants concede that Denise is entitled to 50% of the value of the Denby Property.
[50] Denise is prepared to consent to an order pursuant to s. 118 of the Land Titles Act which permits the registered owner to impose restrictions.
[51] It seems to me that the restriction should be that she may not encumber more than 50% of the value of the Denby Property as 50% is what the Applicants agree she has at a minimum. The parties can put their heads together about the necessary wording.
[52] There is no concern regarding time to negotiate such wording as the Cautions will expire on June 6, 2025. If a suitable arrangement cannot be arrived at the parties may bring the motion for the CPL back over the Denby Property back on.
[53] Doing this preserves Denise’s ability to have access to funds that she could use to fund this litigation.
Issue 4: Do the Applicants meet the test for a preservation order?
[54] The Applicants seek an order preserving the assets of the Estate pursuant to rule 45 of the Rules of Civil Procedure, which states:
Interim Order for Preservation or Sale 45.01 (1) The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party.
[55] The Applicants ask for an order preserving all of the real assets of the Estate, as well as the chattels belonging to the Estate and any unknown accounts or investments, in accordance with rule 45.01(1).
[56] The test for granting an interim preservation order is set out in Meade v. Nelson Resources Ltd. at para 26:
a) The assets sought to be preserved constitute the very subject matter of the dispute;
b) There is a serious issue to be tried regarding the plaintiff's claim to that asset; and
c) The balance of convenience favours granting the relief sought.
[57] For all the same reasons set out above, the test is satisfied.
[58] For the same reasons as above, this is required even though she has agreed to the vacation of the Certificate of Appointment Without a Will.
Costs
[59] The Applicants' full indemnity costs are $22,353.53, substantial indemnity costs are $20,228.57 and partial indemnity costs are $13,853.67.
[60] They seek their substantial indemnity costs from Denise and the difference between their full indemnity costs and the substantial indemnity costs from the Estate on the basis that all beneficiaries benefit from the steps they have taken in this proceeding.
[61] Pursuant to s. 131(1) of the Courts of Justice Act, costs are in the discretion of the court. Rule 57 of the Rules sets out the factors which courts should have regard to when awarding costs. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Zesta Engineering Ltd. v. Cloutier (2002), at para. 4; Boucher v. Public Accountants Council for the Province of Ontario (2004), at para. 26; Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, at para. 52; and G.C. v. Ontario (Attorney General), 2014 ONSC 1191, at para. 5.
[62] The court has the discretion to award substantial indemnity costs, but such costs are “rare and exceptional” and only warranted where there has been reprehensible, scandalous or outrageous conduct on the part of a party: see DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5; Foulis v. Robinson (1978); and most recently Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43.
[63] In estate litigation, courts have ordered substantial indemnity costs where a party makes false representations to obtain a benefit: Meuse v. Taylor, 2022 ONSC 1436 at para 72.
[64] This proceeding was moderately complex. It was important to the parties because of the risk to the Estate if the Will is ultimately determined to be valid.
[65] Denise’s conduct led to this proceeding. She falsely alleged there was no Will.
[66] The Applicants asked her to return the Certificate on three separate occasions (April 2, 21, and 28) but she did not. At that point no costs had been incurred.
[67] The Applicants were forced to bring this proceeding.
[68] As noted, at the hearing, Denise finally agreed to the vacating of the Certificate and providing the statement on assets.
[69] I am satisfied that there is a basis for substantial indemnity costs which I award against Denise. Her filing of an affidavit which contained a misrepresentation, in order to obtain the Certificate of Appointment is scandalous conduct.
[70] I do not order it to be paid immediately because of the financial circumstances her counsel described. Since she is at least entitled to 50% of the Denby Property, there are no concerns that the Applicants will not ultimately be paid.
[71] Further, I do order that the Estate pay the difference between the substantial indemnity costs and the full indemnity costs to the Applicants as requested. The beneficiaries have benefitted from this proceeding.
[72] I ask that the parties provide a copy of the necessary order as the one uploaded does not fully reflect the outcome of this motion.
Papageorgiou J.
Date: 2025-05-13