Court File and Parties

Court File No.: CV-24-00723514-00ES Date: 2025-09-24 Ontario Superior Court of Justice (Estates List)

In the Matter of the Estate of Selma Johanne Umpherson (a.k.a. Selma Johanne Nilsen), deceased

Between: Tina Lourdes Robeznieks Applicant

And: Sandra Nilsen Respondent

Before: Justice A.A. Sanfilippo

Counsel: Edgar-Andre Montigny and Julia Munk, for the Applicant No one appearing, for the Respondent

Heard: September 19, 2025

Endorsement

[1] Selma Johanne Umpherson, also known as Selma Johanne Nilsen, died on July 17, 2023 (the "Deceased"), and was survived by her son, Paul Nilsen, and her daughter, Sandra Nilsen also known as Sandra Elder Nilsen. The Deceased left a last will and testament dated September 8, 2022 (the "September 2022 Will") that named her friend, Tina Lourdes Robeznieks, as executor and trustee.

[2] Ms. Robeznieks brought an application in probate court file number 2023-015665 (the "Probate Application") for the issuance of a Certificate of Appointment of Estate Trustee with a Will ("CAET") in the estate of the Deceased (the "Estate"). This Application was brought further to an Order issued by Dietrich J. on September 13, 2023, that appointed Ms. Robeznieks as trustee of the Estate and ordered that "a Certificate of Appointment of Estate Trustee with a Will shall be issued to Tina Robeznieks subject to the filing of the necessary application" (the "September 2023 Order").

[3] Ms. Robeznieks filed an amended probate application on February 9, 2024. On February 21, 2024, the Respondent, Ms. Nilsen, filed a Notice of Objection, assigned file number 2024-110742, objecting to the issuance of the Certificate of Appointment to Ms. Robeznieks (the "Notice of Objection").

[4] Ms. Robeznieks brought this Application to dismiss the Notice of Objection. Ms. Nilsen did not take any steps to deliver a Responding Record to this Application and did not appear at the hearing of this Application. After hearing submissions from the Applicant, I ordered that the Notice of Objection be dismissed and that a CAET be issued to Ms. Robeznieks on the basis of written reasons to follow. These are the reasons.

I. THIS APPLICATION

[5] This Application for Directions is supported by the affidavit of the Applicant sworn April 24, 2025; the affidavit sworn April 24, 2025 by Cynthia Hanson, a witness to the Deceased's execution of the September 2022 Will; and the affidavit sworn April 26, 2025 by Barbro Elisabeth Stalbecker-Pountney, the lawyer who acted in the preparation and execution of the September 2022 Will. This evidence has not been contested and frames the factual context for this Application.

[6] On August 23, 2023, Ms. Robeznieks brought an Application in court file number CV-23-00704938-00ES (the "2023 Application") for an order for her appointment as the estate trustee and for an order vesting the Deceased's property in Ms. Robeznieks, including a property known municipally as 705-3000 Bathurst Street, Toronto (the "Bathurst Property"). The 2023 Application was brought on the basis of urgency because some three weeks before her death, the Deceased had executed an Agreement of Purchase for the sale of the Bathurst Property and the closing was pending.

[7] The September 2022 Will named Ms. Robeznieks as the estate trustee and named Mr. Paul Nilsen as the alternate. The September 2022 Will left the residue of the Deceased's Estate to her children, Mr. Nilsen and Ms. Nilsen, and to Ms. Robeznieks in equal one-third shares. Dietrich J. ordered that Ms. Robeznieks be appointed as the Estate Trustee of all the property of the Estate and "that a [CAET] be issued to Tina Robeznieks subject to the filing of the necessary application."

[8] Ms. Robeznieks filed the Probate Application. Ms. Nilsen filed the Notice of Objection. Ms. Nilsen's wrote in the Notice of Objection the basis of her objection, in its entirety, as follows:

PENDING

I AM ASKING FOR ORDERS

HOSTILITY TOWARDS ME (including criminal)

DISHONESTY

OTHER

[9] Ms. Nilsen did not bring any Application to support her Notice of Objection. Recognizing that the Notice of Objection must be resolved for the Estate Trustee to proceed with the administration of the Estate, Ms. Robeznieks brought this Application for Directions in accordance with Rules 14.05 and 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Ms. Robeznieks sought an order to dismiss the Notice of Objection and for an order directing the issuance of the CAET to Ms. Robeznieks.

II. PROCEDURAL BACKGROUND

[10] At a Scheduling Appointment on January 21, 2025, Ms. Robeznieks requested an early hearing date for the adjudication of this Application and Ms. Nilsen requested six months to prepare her Responding Record. After consideration of the parties' submissions, the hearing of this Application was scheduled to proceed on May 28, 2025, before any judge. The hearing did not proceed that day due to unavailability of a judge and was scheduled for hearing on September 16, 2025.

[11] Ms. Nilsen did not deliver any Responding Record. On September 16, 2025, Ms. Nilsen did not appear, although on notice of the hearing. The counsel for the Applicant notified the Court that Ms. Nilsen was arrested and remained in custody arising from threats that she made against him. I adjourned the hearing to September 19, 2025, to provide Ms. Nilsen with an opportunity to speak to this Application if she still intended to do so. On September 19, 2025, the counsel for the Applicant notified the Court that Ms. Nilsen had been released from custody on conditions, including that she may communicate with the Applicant's lawyer only through counsel. Neither Ms. Nilsen nor counsel on her behalf appeared at this hearing. As Ms. Nilsen did not deliver any Responding Record, although provided with more time to do so than she had requested, and as Ms. Nilsen did not appear, this hearing proceeded unopposed.

III. ANALYSIS

[12] A Notice of Objection notifies the Court that a party objects to the probate, usually because the objector considers that the validity of a Will is in question and that the objector questions the authority of the applicant to act as estate trustee. This causes the issuance of the CAET to be held down until the objection is resolved. A Notice of Objection must contain the reasons for the objection. By reading Ms. Nilsen's Notice of Objection in the most generous way, I have considered it as a challenge of the September 2022 Will.

[13] In Neuberger Estate v. York, 2016 ONCA 191, 129 O.R. (3d) 721, leave to appeal refused, [2016] S.C.C.A. No. 207, at para. 78, the Court of Appeal explained that the person propounding the will has "the legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity", after which there is a rebuttable presumption of validity. The Court of Appeal explained, at para. 88, that "an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved", for the following reasons:

In the absence of some minimal evidentiary threshold, estates would necessarily be exposed to needless expense and litigation. In the case of small estates, this could conceivably deplete the estate. Furthermore, it would be unfair to require an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes a request for proof in solemn form.

[14] To meet the minimal evidentiary threshold, the person challenging the will must present some evidence which, if accepted, would call into question the will that is being propounded: Neuberger, at para. 89; Bitaxis Estate v. Bitaxis, 2023 ONCA 66, at para. 4, leave to appeal refused, [2023] S.C.C.A. No. 147; Giann v. Giannopoulos, 2024 ONCA 928, at paras. 4-6 and 17; Johnson v. Johnson, 2022 ONCA 682, 81 E.T.R. (4th) 7, at paras 7-8, leave to appeal refused, [2022] S.C.C.A. No. 444. The purpose of the minimal evidentiary threshold is to determine whether the party challenging the will is entitled to documentary discovery: Bitaxis Estate, at para. 5; Neuberger, at para. 89; Giann, at para. 4. While the evidentiary threshold is low, the burden is on the objector to adduce some evidence which, if accepted, would call into question the validity of the will: Neuberger, at para. 89; Johnson, at paras. 8 and 12; Giann, at para. 18, as summarized in Zarrin-Mehr v. Shokrai, 2024 ONSC 1754, at paras. 21-26.

[15] The Applicant tendered the evidence of Ms. Stalbecker-Pountney to show the due execution, knowledge and approval by the Deceased of the September 2022 Will. Ms. Stalbecker-Pountney first acted for the Deceased in December 2009 in the preparation of power of attorney documents and a will dated December 23, 2009 (the "2009 Will"). This 2009 Will named the Deceased's husband as residuary beneficiary and the Deceased's children and Ms. Robeznieks as equal residuary beneficiaries if her husband was not alive at the time of her death. Ms. Stalbecker-Pountney then acted for the Deceased on May 21, 2015, in the Deceased's execution of an updated will (the "2015 Will") that removed her husband, considering his death, and her son Dwight, who had also died. The 2015 Will, and those that followed on June 18, 2022 (the "June 2022 Will") and the September 2022 Will all consistently named the Deceased's children, Mr. Nilsen and Ms. Nilsen, and Ms. Robeznieks, as equal beneficiaries in the residue of her Estate. The September 2022 Will differed from the June 2022 Will in naming Ms. Robeznieks as primary trustee in place of Mr. Nilsen. The Deceased's testamentary intentions, as discerned from this series of wills, remained constant from 2009 to 2022.

[16] Ms. Stalbecker-Pountney swore that she had known the Deceased for some 13 years by the time that the September 2022 Will was signed and that, although the Deceased's eyesight had deteriorated, Ms. Stalbecker-Pountney detected no deterioration in the Deceased's mental state or capacity to make or revise her will. Ms. Stalbecker-Pountney swore that she saw no sign that the Deceased lacked any understanding of what she was instructing or that she was being compelled to do anything against her wishes. Ms. Stalbecker-Pountney witnessed the Deceased's execution of the September 2022 Will along with Ms. Hanson. I accept Ms. Stalbecker-Pountney's evidence as credible and reliable, and corroborated by the testamentary documents exhibited to her affidavit.

[17] The Applicant discharged her legal burden of proof with respect to due execution, knowledge and approval and testamentary capacity of the Deceased regarding the September 2022 Will. There is a rebuttable presumption that the September 2022 Will is valid. To displace this rebuttable presumption, Ms. Nilsen had to meet some minimal evidentiary threshold before the court will accede to her request that a testamentary instrument be proved: Bitaxis Estate, at para. 4.

[18] Ms. Nilsen did not tender any evidence in support of the Notice of Objection. Bald allegations and mere suspicion are not enough: McBeath v. Wright, 2021 ONSC 4494, 70 E.T.R. (4th) 270, at para. 14, citing Naismith v. Clarke, 2019 ONSC 5280, at para. 20; Maloney Estate v. Maloney, 2019 ONSC 5632, 50 E.T.R. (4th) 44, at paras. 19, 23, and 24; Seepa v. Seepa, 2017 ONSC 5368, at para. 27. Ms. Nilsen failed to meet the minimal evidentiary threshold necessary to obtain evidence from others in support of her objection to the validity of the September 2022 Will. I find that the Notice of Objection shall be dismissed.

[19] With the dismissal of the Notice of Objection and considering the 2023 Order appointing Ms. Robeznieks as the Estate Trustee of the Estate, an Order shall issue for the issuance of a CAET to Ms. Robeznieks, on an expedited basis.

IV. COSTS

[20] The Applicant claimed costs of this Application in the amount of $20,092.18, comprising legal fees of $16,944.00, disbursements of $871.20 and applicable taxes of $2,276.98, said to have been incurred in bringing this Application, payable by Ms. Nilsen from her share in the residue of the Estate.

[21] The Applicant's submission that she ought not to be out-of-pocket for the costs that she claims to have incurred is supported by the principle that estate trustees are generally entitled to be indemnified for all reasonably incurred costs in the administration of an estate: Geffen v. Goodman, [1991] 2 S.C.R. 353, at p. 390. I find that Ms. Robeznieks acted reasonably in bringing this Application to resolve the Notice of Objection, considering that Ms. Nilsen had not taken any steps to advance her objection.

[22] The Applicant is entitled to recover the costs that she reasonably incurred in bringing this Application. Considering that Ms. Nilsen's objection required that Ms. Robeznieks prepare a thorough Application Record and Factum and speak to this Application at three hearings, I find that the legal services set out in the Bills of Costs and the hourly rates are reasonable. An Order shall thereby issue that the Applicant shall receive her costs of this Application, fixed in the amount of $20,092.18. I find that these costs are objectively reasonable, fair and proportionate to this Application.

[23] Regarding the payor of the costs, the historical approach in estate litigation that all costs be paid out of the estate has long been displaced by an approach that is intended to ensure that estates are not unnecessarily depleted by unwarranted litigation: McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), at para. 85. The issue of costs in estates litigation is like any form of civil litigation in that it is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, unless public policy considerations require that the costs be paid out of the estate.

[24] I find that Ms. Nilsen caused the costs that have been incurred by delivering a Notice of Objection that she did not support or sustain. If the costs were ordered to be payable by the Estate, each of the other residuary beneficiaries, Mr. Nilsen and Ms. Robeznieks, would incur one-third each of the costs. It would not be fair or reasonable that they share the burden of costs caused by Ms. Nilsen. For these reasons, I order that the costs awarded to the Applicant shall be paid from Ms. Nilsen's distributive share as a residuary beneficiary in the Estate.

V. OTHER RELIEF CLAIMED

[25] At the hearing, the Applicant sought two remedies based on threats made by Ms. Nilsen against the lawyer for the Applicant: a punitive damage award; and an order declaring Ms. Nilsen to be a vexatious litigant. I declined to grant either claim, for the following reasons. The Applicant did not identify any authority that supports her claim for punitive damages as part of a discretionary award of costs. The Applicant did not plead a claim for punitive damages. Any claim by the Applicant to declare Ms. Nilsen as a vexatious litigant must follow the procedure set out in Rule 2.2 and must satisfy the requirements set out in s. 140 of the Courts of Justice Act. The Applicant did not bring any motion or application for this relief.

VI. DISPOSITION

[26] I order as follows:

(a) The Notice of Objection filed by the Respondent, Sandra Nilsen, and attributed court file number 2024-110742, against the Estate of Selma Johanne Umpherson, also known as Selma Johanne Nilsen, (the "Estate") is dismissed.

(b) A Certificate of Appointment of Estate Trustee with a Will shall be issued, on an expedited basis, to the Applicant, Tina Robeznieks, in the Estate.

(c) The Applicant is granted costs of this Application, fixed in the amount of $20,092.18, all inclusive of legal fees, disbursements and applicable taxes, payable from Sandra Nilsen's distributive share as a residuary beneficiary of the Estate.

VII. FORMAL JUDGMENT

[27] The Applicant may take out a formal Judgment by filing a draft Judgment that accords with my disposition of this Application on the Case Center bundle for this hearing (003), and forwarding a copy, in PDF and Word format, to the Court Registrar and the Estates List Trial Coordinator, to be brought to my attention.

Justice A.A. Sanfilippo

Date: September 24, 2025