Ameena Sultan

On February 23, 2012, the Supreme Court denied leave with costs on the following two Estates decisions.

Richard Rondel v. Kelly Anne Robinson

On July 14, 2011, we blogged the Court of Appeal’s decision in Rondel v. Robinson Estate, 2011 ONCA 493 (CanLII). In that decision, the Court of Appeal had upheld the application judge’s finding that extrinsic evidence is inadmissible and that the intentions of a Deceased can only be gleaned from the words found in the Will.

The Superior Court and Court of Appeal’s decision showed a marked departure from previous Superior Court of Justice rulings that had allowed the admission of direct extrinsic evidence of a testator’s intention in Will rectification and interpretation proceedings.

The Court of Appeal’s decision was unequivocal in its exclusion of extrinsic evidence. At the conclusion of the decision, Juriansz, J.A. wrote for the Court of Appeal: “In my view, there is no question about the good sense of the common law rule excluding direct extrinsic evidence of a testator’s intent” stands.

It will be interesting to see if, in spite of the Court of Appeal’s strong statement on the inadmissibility of extrinsic evidence in Will rectification and interpretation cases, whether counsel will continue to press and test the issue and whether they will have any success in that regard.

Click here to read our July 14, 2011 blog on Rondel v. Robinson Estate, 2011 ONCA 493 (CanLII)

Nancy-Gay Rotstein et al. v. Lawrence Jerome Berk Smith, Executor and Trustee of the Estate of Ruth Dorothea Smith

On July 20, 2011, we blogged about the Court of Appeal’s decision in Smith Estate v. Rotstein, 2011 ONCA 491 (CanLII).

In that decision, Nancy-Gay Rotstein had appealed the Superior Court of Justice’s decision granting summary judgment to Ms. Rotstein’s brother, Lawrence Smith, as well as the costs awarded against her in that matter. Justice Brown of the Superior Court of Justice, in granting summary judgment had ruled that Ms. Rotstein’s conduct was “reprehensible” and that she had “engaged in baseless, hugely expensive, scorched earth litigation over the validity of a will.” Accordingly, Justice Brown had ordered full indemnity costs against Ms. Rotstein in the amount of $707,173.00.

The Court of Appeal upheld the Superior Court ruling on summary judgment.

On costs, the Court of Appeal upheld the award on a full indemnity scale but directed the motion judge the reassess the quantum of fees payable.

Armstrong J.A. noted that Ms. Rotstein was the “author of her own misfortune.”

The Supreme Court’s denial of leave means the decision on summary judgment stands, as does the principle that, even in Estate matters, a party’s combative and reprehensible conduct can invite an elevated costs award.

Click here to read our July 20, 2011 blog on Smith Estate v. Rotstein, 2011 ONCA 491 (CanLII)

Click here to see the Supreme Court of Canada News Release dated February 23, 2012

In the recent decision of Hope v. Martin 2011 ONSC 5447 (CanLII), Justice Brown considered the circumstances under which a drafting solicitor can release an original Will. In that case, in which Whaley Estate Litigation was involved, the two named executors (including the drafting solicitor) had renounced and the Deceased’s former stepdaughter sought to be appointed Estate Trustee. The prospective Estate Trustee requested the original Will for the probate application, however was informed by the drafting solicitor that he could not release it due to solicitor-client privilege and confidentiality and that the only party he could release it to was the named Estate Trustee.

The prospective Estate Trustee brought a motion for the release of the original Will, which prompted comment from Justice Brown. In his reasons, Justice Brown wrote that “[w]here a deceased made a will, it follows that the deceased intended the will to be acted on and thereby authorized his or her solicitor to disclose the will to the appropriate person so that intention could be fulfilled.” Justice Brown continued, calling for “practical judgment to ensure that the testatrix’s intentions were performed without imposing unnecessary costs on the estate.” Justice Brown cautioned that lawyers should not insist on Court orders for the release of an original Will unless there are reasonable grounds to question the authority of the person seeking the Will. The Will was ordered released to the prospective Estate Trustee.

The decision is linked here: Hope v. Martin 2011 ONSC 5447 (CanLII)

Click here to see the Law Times report on this decision

In this decision issued in May 2011, Justice Penny, of the Superior Court of Justice, granted summary judgment in respect of a Will challenge by a disgruntled daughter. Although this decision precedes the Court of Appeal ruling on Smith v. Rotstein¹, it stands for the same principles in that decision.

In the decision of Smith v. Rotstein, Justice Brown had granted partial summary judgment in respect of a Notice of Objection, in which the Objector had expressed opposition to a Will and Codicils on a variety of grounds, including lack of capacity, lack of due execution, lack of knowledge and approval, and the presence of undue influence. Justice Brown granted the motion on the grounds that there was no genuine issue for trial. The Objector appealed the ruling of Justice Brown to the Court of Appeal, which, while sending the quantum of costs back to the Superior Court of Justice, upheld the decision on the motion for summary judgment.

The Orfus decision similarly stemmed from a Notice of Objection. The Notice was brought by Sharon Gerstein, the daughter of the Deceased, Bessie Orfus. In her Notice of Objection, Sharon alleged that the Deceased did not have testamentary capacity when she executed her Wills and/or Codicil, that she did not know and approve of the contents of the Wills and Codicil, and that Sharon’s sister, Elaine, had unduly influenced their mother such that the two Wills and the Codicil were invalid.

Around 2004, Mrs. Orfus had been named in litigation commenced by her granddaughter Carrie. Although Sharon was initially named as a respondent with Mrs. Orfus and Elaine, she later retained separate counsel and caused the family businesses to be wound up. Elaine received in excess of $9 million in those proceedings.

In that same time period, Mrs. Orfus changed her Will to exclude Sharon as well as her granddaughter Carrie who had been key in commencing the litigation. It is those testamentary instruments that Sharon challenged in her Notice of Objection.
In his decision, Justice Penny reviewed in detail the allegations of lack of testamentary capacity, lack of knowledge and approval, as well as undue influence and found that there was no genuine issue for trial in respect of any of these three heads. His decision hinged on the lack of corroborative evidence in support of the allegations, specifically, in dealing with the issue of capacity, even though Justice Penny noted that the drafting solicitor could have been more careful in ascertaining Mrs. Orfus’s instructions and confirming her testamentary capacity. Justice Penny found insufficient evidence to rebut the presumption of capacity. On the issue of knowledge and approval, similarly, Justice Penny found that there was insufficient evidence to support a view that Mrs. Orfus did not have knowledge and approval of the contents of her Wills and Codicil. On the issue of undue influence, Justice Penny found that Elaine’s close relationship with her mother was insufficient grounds to support a finding of undue influence. Justice Penny took pains to affirm, as did Justice Brown in Smith v. Rotstein, that care and contact are not enough, in and of themselves, to establish undue influence. At paragraph 254, Justice Penny wrote that the “threshold to prove undue influence is high” and that persuasion or bad influence are not enough.

Of assistance to the moving party was supporting evidence from the Deceased’s caregiver, her doctor, her dentist, as well as her lawyer to confirm that the Deceased had a positive and supportive relationship with her daughter Elaine, that she did not suffer from cognitive deficits in spite of her advanced age, and that she had valid and supportable reasons based on facts for changing the way in which she sought to divide her estate.

While counsel for the responding party asserted that there were “serious issues” raised by the Notice of Objection, such that the Court should allow the matter to proceed to trial, Justice Penny disagreed, finding that “serious” issues are insufficient to defeat a Motion for Summary Judgment. The threshold, according to Justice Penny, is that “[t]he issues in question must be serious issues of material fact, resolution of which requires a trial, i.e., the forensic machinery of the trial process.”

And thus, another Notice of Objection is dealt with by way of summary judgment. This is a caution to Objectors to ensure that when they file a Notice of Objection, they have sufficient corroborative evidence as required by Section 13 of the Evidence Act, failing which they could find themselves on the receiving end of a Motion for Summary Judgment.

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1. (2010), 56 E.T.R. (3d) 216(Ont. S.C.), Aff’d 2011 ONCA 491 (CanLII), 2011 ONCA 491

This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.