Summary Judgment and Testamentary Capacity – The Ontario Court of Appeal Speaks

The use of summary judgment motions to dismiss will challenges appears to have been given a boost by the Ontario Court of Appeal. In Orfus Estate v. Bessie Orfus Family Foundation, the Court heard an appeal from the Superior Court, which granted summary judgment dismissing a challenge by the daughter of the deceased to the validity of two wills and a codicil. The challenge was grounded in an allegation of a lack of testamentary capacity and of undue influence. The motion judge held that the testator had capacity, knew of and approved the contents of the documents and that their execution was not procured by undue influence. The Court of Appeal upheld that decision. The case is interesting for a few reasons.

The decision under appeal was decided before the Court of Appeal decision in Combined Air, which established or clarified (depending on your viewpoint) the test for summary judgment in Ontario. On appeal, the Court applied the Combined Air “full appreciation” test to ask – “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial”.

A voluminous record often bodes ill for meeting the full appreciation test, usually because “more paper” is often equated with “more complicated” and therefore deserving of a full trial. However, in the circumstances of this case, the fullness of the record (20 witnesses, 5000 pages of evidence, including exhibits) may have had the opposite effect.

The Court found that the evidence, while voluminous, was not particularly contradictory and did not raise issues of credibility. Much of the evidence was from the deceased’s physicians and lawyers who, unless there is evidence otherwise, are generally considered by courts to be disinterested, reliable witnesses and therefore not usually prone to credibility problems. Here, the physician / lawyer evidence was found to either support the position that the deceased had capacity and was not unduly influenced, or to be inconclusive either way. Rather than add to the complexity of the case, it appears that the Court saw the volume of evidence as bolstering the case for capacity.

Granted, this was not a case involving significant conflicting evidence of capacity or undue influence from family members, which is often the case. Credibility issues tend to arise more often where the evidence of interested family members is important to the court’s findings. However, reading into the comments of the Court, the message appears to be that testamentary cases generally are good candidates for summary judgment, at least in the cause of dismissing them. The Court noted that the evidence of the main party, the deceased, cannot be subject to credibility (at least none that can be tested at trial, for obvious reasons). As well, as stated, courts will generally prefer available medical evidence and the evidence of the drafting lawyer and witnesses to the execution of a will or codicil over that of self-interested offspring. Therefore, with this case, the Court of Appeal may be signaling that the availability of sound evidence of reliable professionals to support a finding of capacity should encourage the use of summary judgment in dismissing will challenges.

As a postscript, the Court of Appeal has released its decision on costs of the motion. The successful respondents asked for substantial indemnity costs of approximately $85,000 or in the alternative, partial indemnity costs of approximately $58,000. The Court granted costs of $30,000, stating that the party alleging incapacity “argued reasonable questions of law and process, and her challenge to the codicil raised a difficult issue”.

Comments of the Superior Court of Justice in the first three paragraphs of Baywood Homes v. Alex Haditaghi are also interesting. While not a will challenge case, the comments of Justice Belobaba support the notion that “more paper” does not equate with “more complicated”.

See also Blanchard v. Bober.

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