Short-circuiting the frivolous will challenge – Episode #146

January 20, 2009 Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , 0 Comments

Listen to Short-circuiting the frivolous will challenge

This week on Hull on Estates Natalia Angelini and Craig Vander Zee discuss the frivoulous will challenge from the perspective of how you might short-circuit it.

Feel free to send us an email at or leave us a comment on the Hull on Estates blog.

Short-circuiting the frivolous will challenge – Episode #146

Posted on January 20th, 2009 by Hull & Hull LLP

Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode number 146 on Tuesday, January 20, 2009.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Craig Vander Zee: Hello Natalia, how are you today?

Natalia Angelini: I’m good Craig, how are you?

Craig Vander Zee: Excellent. Happy New Year, by the way.

Natalia Angelini: And to you.

Craig Vander Zee: Welcome to another episode on Hull on Estates. I guess this is the first one for you and I in the 2009 year so it’s a pleasure being able to do this again with you to start the year.

Natalia Angelini:  For me as well.

Craig Vander Zee: If you want to be heard on Hull on Estates, you can participate by leaving us a comment and e-mail us at or you can visit our blog at

Natalia Angelini: So Craig, today we’re going to talk about the frivolous Will challenge.

Craig Vander Zee: Well, and I think more specifically, from the perspective as to how you might deal with a frivolous Will challenge to short-circuit it, if you will, or to try and deal with it, terminate the challenge as soon as possible. And I think what’s important to keep in mind is that in a typical Will challenge, the process can involve an Application or a Motion for directions, documentary discovery from parties and non-parties, examinations of parties and non-parties, perhaps even interlocutory Motions. You know, those Motions in a proceeding before a trial is actually heard. Mediation, whether formal or informal, expert reports, a pre-trial conference and a trial. So as we know, it’s a very extended process unfortunately, if the Will challenge goes from its commencement right through to and including a trial.

Natalia Angelini: Yeah, and that’s why I think that one of the best tools to manage the process of a Will challenge is an Order for Directions.

Craig Vander Zee: Well, that’s right, Natalia. An Order for Directions is often the best tool a party has at first instance to manage the Will challenge. Its through the Order for Directions that you will lay out the parties, what the issues are.  Is there any interim relief you need? Are you going to have Orders with respect to documentation production, examinations, etc.? So that is the time when you can best, in a typical Will challenge, craft how you want to manage the Will challenge going forward with a mind to the kind of evidence that you will need to marshal for the Will challenge itself as well as the prospects of settlement. And that is certainly what one would want to take advantage of in a typical Will challenge. 

Where it’s a frivolous Will challenge and its certainly identified as that, there are other alternatives or proceedings in addition to an Order for Directions that can be utilized. One being a Motion for summary judgment. Another being a Motion for security for costs.

Natalia Angelini: Right. And if you intend to bring those Motions, its I think important to have that as one or both of the provisions in your Order for Directions.

Craig Vander Zee: Well that’s right. At least if they’re not expressly in your Order for Directions, then its something that you give thought to so that (1) if you’re going to need certain evidence for a Motion for summary judgment per se, that you consider how that’s going to be marshalled, even at the time you’re doing your Order for Directions; and also how the provisions in the Order for Directions are going to deal with how the proceeding will be heard. It may very well be, given the case law, that you don’t want to expressly state in an Order for Directions that the matter will only be heard by way of trial, as you want to leave it open for a Motion for summary judgment. And while it appears that even if that form of provision were in the Order for Directions you could still proceed with a summary judgment Motion, why complicate the matter if you don’t need to, and pave the route for that kind of Motion if that’s what you think you’re going to pursue?

Natalia Angelini: Right, good point.

Craig Vander Zee: So, as we know, Rule 20 of the Rules of Civil Procedure, governs Motions for summary judgment in the civil context, both in terms of commercial litigation and in the sense of estate litigation as well. Certainly in the civil litigation context, Motions for summary judgment are by no means unusual and have found their way as a common place mode of dealing with a particular matter. There are a number of Ontario Court of Appeal cases and even Supreme Court of Canada cases that deal with Rule 20 and summary judgment Motions.

Natalia Angelini: Right, and the test which the Supreme Court of Canada set down in the case of Guarantee of North America and Gordon Capital Corp. is that the applicant has to show that there is no genuine issue of material fact requiring trial and therefore that summary judgment is a proper question for consideration by the Court. And once the moving party has shown that, then the responding party has to establish that his or her claim is really one that has a real chance of success.

Craig Vander Zee: And perhaps another way of putting it, the burden to prove that summary judgment is appropriate in the circumstances is on the moving party, that the moving party must show that there’s no genuine issue for trial, that issues of credibility aren’t existent such as to be fatal to the Motion for summary judgment. And then once that’s established, then the responding party has to step up to the plate and prove that there is a genuine issue for trial. It is possible that a responding party may not file materials on the belief that the issue of there being credibility or a genuine issue for trial is so clear cut; however the cases have indicated that…and its possible if there’s holes in the moving party’s case, that that can well indeed be fatal to the Motion for summary judgment. However the cases have indicated, though, that if it is established that there’s no genuine issue for trial, the respondent needs to put its best foot forward with respect to its evidence, play trump if you will, in order to establish that there is a genuine issue for trial.

Natalia Angelini: So why don’t we turn to summary judgment Motions in the estate context. There’s a case by the name of Straus and Bainbridge which was affirmed in 1999 by the Court of Appeal where the Court granted summary judgment in the estates context. And maybe I’ll just go through the facts briefly.

Craig Vander Zee: Sure.

Natalia Angelini: It was a Will challenge and the basic issues were not in dispute. Ms. Straus was the executrix and sole beneficiary under Mr. Bainbridge’s last Will. She was a long-time neighbour and close friend of him and his wife. His wife had predeceased him. And Ms. Straus had assisted Mr. Bainbridge in the care of his wife. It appeared that the Bainbridges had no children. However it was later revealed that Mr. Bainbridge had fathered two children as a result of a prior union. So that prior union ended when the eldest of the two children was 2 years old and the younger child was still in gestation. The facts are that there was no further contact between the two children and Mr. Bainbridge and that both children were later adopted by the mother’s second husband.

Craig Vander Zee: That’s right Natalia. And the Motion for summary judgment was brought by Ms. Straus to dismiss the challenge by one of the estranged sons, if you will, to Mr. Bainbridge’s last Will. The challenge alleged that Mr. Bainbridge lacked testamentary capacity at the time he made his Will and that the Will was procured by way of undue influence. There were some interlocutory issues dealt with by Justice Sheard and then the ultimate Motion for summary judgment was heard by Justice Hoylett who had little trouble, it appears, in granting the Motion for summary judgment and dismissing the Will challenge. On appeal, the Ontario Court of Appeal affirmed, albeit with rather short reasons, but nevertheless affirmed Justice Hoylett’s decision that Motion for summary judgment be granted in the circumstances. And what’s particularly interesting about this decision or the comments by Justice Hoylett are that he found that the responding Affidavit to the Motion for summary judgment was really a punitive Affidavit put in and was replete with speculation, innuendo, hearsay, gossip and rumour. And it went on to say that property characterized, not only has the responding party failed to play trump, but at the risk of over-extending the metaphor, His Honour said that he was afraid the responding party had played a joker. So clearly, in that particular case, the facts were such that it was clear that it was a frivolous Will challenge and the Court granted summary judgment.

Natalia Angelini: Right, and the Court didn’t expressly address the applicability of Motions for summary judgment to Will challenges. That was considered somewhat later in a couple of other decisions.

Craig Vander Zee: Well that’s right, but just on that point, in Justice Hoylett’s decision and that of the Court of Appeal as I recollect, the specific question as to Rule 20 of the Rules of Civil Procedure being the Rule governing Motions for summary judgment and its applicability to Will challenges, wasn’t considered as expressly as it was by the Court in later years. Having said that, both Justice Hoylett and the Court of Appeal did not express any difficulties in granting the Motion for summary judgment.

Natalia Angelini: Right. And after that decision, a few…about two or three years later in Knox and Trudeau and Ostrich and Brunhuber (if I’m pronouncing that correctly) the Court denied summary judgment and in the case of Knox did so on the ground that such Motions were not available in contested estate proceedings?

Craig Vander Zee: And again, what is interesting about those two decisions is that it appears anyways that they were released in 2001, days apart from each other.

Natalia Angelini: Right.

Craig Vander Zee: Unbeknownst, if you will, to the other in that neither case considered the Straus case. So it appears that Motions for summary judgment were ‘walking through the wilderness’, to use that metaphor, for several years. And it wasn’t really until Justice Cullity in his Atori decision where the applicability to Will challenges, that is summary judgment Motions in the case of Will challenges, was again expressly considered.

Natalia Angelini: Right. And there have been several cases since then that have considered summary judgment and have granted it.

Craig Vander Zee: Well, and just before we follow-up on that, in Atori, Justice Cullity did find that summary judgment Motions, despite the comments of the judges in Knox and Trudeau and Ostrich and Brunhuber was available in estate matters in a Will challenge. And as you mentioned, there were a number of cases following those ones we’ve mentioned, that have gone on to consider Will challenges and other estate matters, if you will, in the context of a Motion for summary judgment. Sometimes its granted; sometimes it’s not. But it appears that the ability to bring a Motion for summary judgment is available.

Natalia Angelini: Right, it’s no longer in question. And with that in mind, since its clear that summary judgment is available in contested estate proceedings and more specifically, in a Will challenge, its also important to note that, you know, summary judgment Motions are risky. The moving party has to first meet its onus of proving that there’s no genuine issue for trial. The evidence must be clear and concise and the credibility of witnesses cannot be in doubt, as Craig stated earlier.

Craig Vander Zee: That’s right. Competing evidence as to testamentary capacity, undue influence or the due execution, you know, can very well be fatal to the Motion and will lead to a finding that there is a genuine issue for trial. And the overlay to a Motion for summary judgment is that there are cost sanctions for both winning and losing the Motion. And Rule 20.06, I believe, deals with that. But they can be very substantial. And if you lose your Motion, even if the Will challenge itself is a weak one but the Court finds that there’s a genuine issue for trial, or competing evidence or issues of credibility, then your client could find, or a client could find themselves paying costs in respect of losing the Motion but maybe winning the Will challenge at the end of the day. And since those costs can be substantial, its always a factor, at least I would think, taken into consideration when bringing such a Motion.

Natalia Angelini: Yeah, so that said, risk also lies on the shoulders of the responding party as well. Unsupported allegations of capacity or undue influence will not likely win the day if the moving party proves there’s no genuine issue. And an Affidavit that’s replete with speculation, innuendo, hearsay, gossip and rumour, like in the Straus case, would also not win the day. You know, as is commonly said, you have to lead trump or risk losing.

Craig Vander Zee: Well and again, just before we close out Natalia, on the issue of costs. Again, the issue of costs is in the discretion of the judge. But again, it is a factor that can certainly sway one from either bringing a Motion for summary judgment if its not clear on the face of it that there’s no genuine issue for trial. So again, they’re available, they’re risky, the Court may proceed hesitantly, but there is certainly case law where summary judgment has been granted. And especially in the case of a frivolous Will challenge. But again, the burdens must be met. And with that in mind, if a summary judgment Motion is going to be brought, going back to our initial comments about Orders for Directions, it may very well be that the Order for Directions contemplates a summary judgment being brought, not necessarily expressly but leaving it open for the opportunity to do so, if it is an appropriate, reasonable and right circumstance to bring the Motion. And I think that’s where we’ll end off today.

Natalia Angelini: Great, thanks Craig. And thanks for listening. And it was a pleasure podcasting with you, Craig. I look forward to podcasting with you again soon.

Craig Vander Zee: Thanks Natalia. And again, we look forward to hearing from our listeners. You can send us an e-mail again at Again, be sure to visit our blog at where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the podcast again today and it was a pleasure, Natalia. 

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.


To listen to other podcasts, or to leave a question or comment, please visit our website at


Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.



Leave a reply

Your email address will not be published. Required fields are marked *


Enter your email address to subscribe to this blog and receive notifications of new posts by email.