The case of Ward v Anderson Estate et al., 2021 ONSC 8337 tackles an important question concerning will challenges: can a motion for summary judgment be granted in an application challenging the validity of a will?

This motion relates to the Estate of Lorraine Elizabeth Agnes Anderson, the mother of the Applicant and Respondent. Larissa, the Applicant, filed a Notice of Objection to her sister, Lurlene’s, application for a Certificate of Appointment of Estate Trustee with a Will on the basis that her mother lacked testamentary capacity to sign her Will, among other objections.

The judge had to determine whether summary judgment, sought by Lurlene, could be granted in such an application. The judge found that based on the evidence in this case, a summary judgment was appropriate and could be granted and therefore, the Will was declared valid.

The two main issues, in this case, were whether the deceased had capacity to execute her Will and whether it was in fact duly executed. Pursuant to Rule 20.04(2), a court may grant summary judgment where it is satisfied that there is no genuine issue for trial with respect to a claim or defence. Section 13 of the Evidence Act further states that in summary judgment motions regarding testamentary instruments, a party cannot invalidate the testamentary instrument based solely on their own uncorroborated evidence.

The court had to decide whether a summary judgment could be granted in an application where the validity of a will was being challenged. Ontario case law has previously commented on this question and has said that the Rules of Civil Procedure contemplate the possibility of a summary disposition in contentious estate matters. The court has further stated that the evidentiary requirements of Rule 20 provide the necessary safeguards for estate matters. Therefore, it was appropriate for this application to proceed as a motion for summary judgment.

The judge went on to explain why it was appropriate to grant summary judgment in this case. The first reason was that based on the evidence, the mother’s testamentary capacity had been established at the time she had executed her Will. This was mainly because of the testimony of the drafting solicitor and his notes that corroborated his evidence. There was also a note from the deceased’s physician stating that she was capable of writing her Will. Since determining testamentary capacity is a question of fact, the judge found that there was no evidence to prove Larissa’s allegations that her mother did not have the capacity to give instructions with respect to her Will.

The other reason was that there was no evidence with respect to there being suspicious circumstances related to the formation or execution of the Will. The judge found that although Lurlene may have helped her mother in arranging for the Will to be amended and helped to carry out those arrangements, this did not give rise to suspicious circumstances.

Therefore, there was no genuine issue for trial and Larissa’s Notice of Objection was set aside and the Will was declared to be valid. This case reiterates that a summary judgment can be granted where an application is brought challenging the validity of a will. The court will look at the evidence as a whole and make a determination based on the facts of the particular circumstances.

Thank you for reading.