Yasmin M. Vinograd

The applicants sought production of solicitor-client privileged records from the deceased's lawyer and leave to examine the lawyer regarding legal services provided to the deceased in May 2021.

The respondent claimed solicitor-client privilege survived the deceased's death and was not subject to the wills exception.

The court found that the wills exception applied because undue influence and lack of capacity were central issues, the solicitor's retainer occurred during a critical window of estate planning, and the timing was closely related to suspicious testamentary documents executed while the deceased was hospitalized.

The court ordered production of the lawyer's file and permitted examination of the lawyer.

This application concerned the interpretation of Eleanor Martha Devonport's will regarding a residential property gifted to her son, Peter, who predeceased her.

The applicant, Peter's spouse and estate trustee, argued the property passed to her via the anti-lapse provision (s. 31) of the Succession Law Reform Act.

The respondent, Eleanor's surviving child and estate trustee, contended Eleanor's will expressed a contrary intention, causing the gift to lapse into the residue of the estate.

The court found no contrary intention in the will to oust the anti-lapse provision, ruling the property passed to the applicant.

The court also dismissed the respondent's unjust enrichment claim and ordered the respondent to account for dealings with the property and pay occupation rent to the applicant.

The applicants, who are the children and accountant of the respondent, brought an application for declarations that the respondent is incapable of managing property and personal care, and incapable of granting or revoking powers of attorney.

The respondent, an elderly man with significant real estate holdings, had executed powers of attorney in 2011 in favour of the applicants.

Following a stroke and cognitive decline, the applicants assumed management of his affairs.

Subsequently, the respondent married a new partner and executed new powers of attorney with the assistance of a friend.

The court reviewed competing capacity assessments and medical evidence, concluding that the respondent has been incapable of managing property and personal care since September 2017, and incapable of granting or revoking powers of attorney since November 2018.

The court affirmed the authority of the applicants under the 2011 powers of attorney.

The applicant sought to prove a lost will where the original could not be found after the testator's death.

The next-of-kin respondents argued that the presumption of intentional destruction by the testator had not been rebutted, which would result in an intestacy.

The court reviewed the testator's organized nature, her consistent statements affirming the sole beneficiary, and her understanding of the consequences of intestacy.

The court found sufficient evidence to rebut the presumption of revocation and admitted a copy of the will to probate.

Costs decision following a motion for directions in a guardianship application under the Substitute Decisions Act.

The applicant sought inclusion of production terms requiring disclosure of medical records and a lawyer’s file relating to powers of attorney executed by the applicant’s mother.

The court had previously refused to include those production terms in the order for directions.

On the issue of costs, the court held that the motion proceeded unnecessarily due to the applicant’s insistence on the disputed production terms and that the respondents had been prepared to consent to the remaining terms.

Partial indemnity costs were therefore awarded to two respondents, with reductions applied to the amounts claimed as excessive.