Summary Judgment in Estates Litigation

November 12, 2013 Hull & Hull LLP Estate & Trust Tags: , 0 Comments

Will Challenges may often be driven by emotion rather than logic. The historic approach of the courts (until relatively recently) to give a challenger to the validity of a Will his or her costs further entrenched the perception that estate litigation was firmly in the category of cases that were notoriously difficult to have dealt with by way of a motion for summary judgment.

That may be changing.  The changes to Rule 20 as they relate to summary judgment make summary judgment available to a greater extent than was previously the case.  "No genuine issue requiring a trial" has given rise to the "full appreciation" test.  Simply put, if the matters in issue and the evidence produced on the motion satisfy a Judge that he or she would not gain a more full appreciation of the matters at issue at a trial, then summary judgment should be granted.

Of course, estate litigation entails more than will challenges.  Dependant support cases may also be susceptible to summary judgment, especially in cases where the Estate takes the position that the purported "dependant" does not fit within such category.  While the question of whether a person fits within the category of "spouse" under Part V of the SLRA is a notoriously triable issue, Blanchard v. Bober (89 ETR (3d) 36) was an Ontario Superior Court of Justice case where an adult child claiming support was found not to be a dependant on a motion for summary judgment because he was placed "for valuable consideration in a foster home by a person having lawful custody" and therefore no longer qualified as a "child" within the meaning of the Act.


David Morgan Smith



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