Summary Judgment Granted

August 1, 2013 Hull & Hull LLP Litigation Tags: 0 Comments

While summary judgment motions are difficult to win, particularly in estates matters as one or more key witnesses are usually deceased, a recent motion in the case of Blanchard v. Bober for summary judgment seeking to dismiss a will challenge and dependant support claim was successful.

In this case, the testator left her entire estate to her daughter. The litigation was commenced by the testator’s son, who was placed in foster care at the age of two together with two of his other siblings (now deceased), and he never lived again with his mother.

The will challenge was grounded in allegations of undue influence on the part of the testator’s daughter. The Judge found that the allegations were unsupported by any other material (corroborated evidence is mandatory pursuant to section 13 of the Evidence Act). The Judge pointed out that the cross-examination evidence did not contain any information that contradicts the assertion that the deceased had full capacity, was seen independently of her daughter and knew exactly how she wanted her affairs ordered. In addition, the solicitor’s evidence regarding the deceased’s testamentary wishes was accepted, and interestingly the lawyer’s file included a specific acknowledgement and direction provided to the law firm by the deceased that confirmed her wishes.

With respect to the alternative claim for dependant support under section 57 of the Succession Law Reform Act, the Judge found that the deceased was under no legal obligation to support the applicant. While the applicant was the testator’s son, once a child is put for “valuable consideration in a foster home by a person having lawful custody”, under the SLRA they no longer qualify as a child. Add to this the fact that the claimant was an adult (60 years old), as well as the finding that there was no evidence that the deceased was providing ongoing support to him at the time of her death or at any time for that matter, and the claim was denied.

Thanks for reading and have a good day,

Natalia Angelini

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