Taayo Simmonds

The plaintiff sought to prove a 2013 will executed by the deceased, which left the family farm to her and the residue to the deceased's nieces and nephews.

The defendant brother challenged the will, alleging it was not signed by the deceased or not signed in the presence of two witnesses, relying on the discovery of an unwitnessed copy of the will shortly after death.

The court accepted the evidence of the two attesting witnesses and found that the will was duly executed in accordance with the Succession Law Reform Act.

The 2013 will was declared valid and the plaintiff was granted a Certificate of Appointment as Estate Trustee.

The plaintiff sought summary judgment to enforce a collateral mortgage on an Ontario property owned by the defendant wife, which secured a loan to her husband's company.

A New York court had previously found the personal guarantees valid.

The Ontario Superior Court of Justice declined to apply issue estoppel, finding it would work an injustice.

The court held the mortgage was unenforceable because it was the product of presumed undue influence by the husband, of which the plaintiff had constructive notice, and the plaintiff failed to ensure the wife received independent legal advice.

The action was dismissed.