W. Ormond Murphy

The applicant brought a motion for leave to appeal the order of Roger J. dated January 5, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered the applicant to pay costs of $4,000 to the responding party.

The applicant challenged the validity of his late father's will, arguing that the deceased lacked testamentary capacity when he executed a 'deathbed will' in the hospital following a severe stroke.

The court applied the relaxed test for capacity from Parker v. Felgate, finding that the deceased had full capacity when he gave instructions and reviewed the draft will prior to his stroke.

The court held that the propounders of the will met their burden of proving capacity and that the applicant failed to establish suspicious circumstances or incapacitating delusions.

The will was ordered to be probated.

The estate trustees sought the opinion, advice, or direction of the court regarding the application of the rule in Saunders v. Vautier to a testamentary trust created for a beneficiary under a limited property will.

The court addressed whether the trust known as the “Susan Fund” could be terminated with immediate distribution depending on whether the beneficiary exercised a power of appointment by deed or will.

The court held that the rule in Saunders v. Vautier would not apply where no appointment was made, but would apply if the beneficiary appointed another beneficiary or her estate by deed.

The reasons clarified the implications of an earlier decision concerning a related trust and confirmed when the beneficiary could compel termination of the trust.

The appellant appealed a trial judgment which found that money received from the deceased was not a gift and that the storage of property at an abandoned school did not constitute a bailment.

The Court of Appeal dismissed the appeal, holding that the trial judge's conclusions were well-supported by the record, and awarded costs of $7,000 to the respondents.