Case information

Wills and estates — Wills — Validity — Judgments and orders — Summary judgments —Whether it is appropriate to make an award of solicitor court costs against the party seeking clarification of a last will and testament where a court has found that a presumption of suspicious circumstances exists — What meaning should be ascribed to the modern approach to estate litigation legal costs? — Whether it is appropriate for a trial judge to dispose of a contested estate matter involving the validity of a will by way of summary judgment under the applicable rules of civil procedure where facts remain in dispute and the applicable rule stipulates that a trial must be held — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 75.08.

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The applicant, Ms. Bell, contested the validity of the last will and testament of a deceased. The respondent, Ms. Randell, was the named executrix and residual beneficiary in that will. Ms. Randell brought a motion seeking a number of orders including one confirming her status as estate trustee. Ms. Bell argued that the matter should not proceed in a summary fashion and that the issues should be determined only after a trial. The motion judge found that there was no indication that Ms. Bell would lead additional evidence at trial that would corroborate her allegations, or that such corroborative evidence even existed. She therefore granted Ms. Randell’s motion for a summary ruling. She concluded that there was corroborative evidence that the deceased had the capacity to make the will and that she had done so of her own free will. She dismissed Ms. Bell’s notice of objection relating to the will. She issued the orders Ms. Randell sought. She ordered Ms. Bell, rather than the estate, to pay costs on a substantial indemnity scale. The Ontario Court of Appeal dismissed Ms. Bell’s appeal and her application for leave to appeal the costs order.