While the minimum evidentiary threshold has been a regular feature of recent caselaw, a motion for summary judgment remains an option for the propounder of a will facing a weak challenge. And if summary judgment is granted, a motion for security for costs may be a good strategy for the propounder to employ if the challenger appeals.
Consider Watson v. Herom, a 2022 decision of the Ontario Superior Court of Justice. In this case, a disinherited daughter (“Leslie”) challenged a last will that solely benefitted her sister (“Gail”). Gail brought a motion for summary judgment and succeeded. In the words of the Motion Judge:
“Having weighted the evidence, as I am permitted under r. 20.04(2.1), I find that Leslie’s evidence is outweighed by the evidence of the defence. Her evidence is not persuasive enough to give rise to a genuine issue requiring a trial of this action. Without corroboration or some independent confirmation, Leslie’s evidence is not sufficiently credible. On the other hand, I find that the defence evidence is credible, reasonably capable of belief, and dispassionate. It confirms the validity of the Will.”
When Leslie sought to appeal the summary judgment, Gail moved before a single judge of the Court of Appeal for security for costs. Rule 61.06(1) of the Rules of Civil Procedure, R.R.O., Reg. 194. states in part:
In an appeal where it appears that, (a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal … a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
On that motion, the Judge considered it unfair for Gail to bear the burden of having to respond to an appeal of “doubtful merit” without security for costs. In the words of the Court of Appeal on the subsequent appeal: “The Motion Judge was mindful of the appellant’s restricted financial circumstances but was satisfied that the requested order was not being used as a litigation tactic to prevent the appeal from being heard on its merits. She reasoned that security for costs in the amount of $15,000 provided substantial protection to the respondent for her costs of the appeal without being a crushing amount for the appellant.“
Leslie then appealed this finding. In a unanimous decision, the Court of Appeal dismissed the appeal, thereby likely bringing an end to the litigation:
“The Motion Judge applied the correct test for an order for security for costs on appeal and provided detailed reasons on the lack of merit in the underlying appeal. In addition, she noted that the appellant had provided scant information about the income she was able to generate and her ability to raise or borrow money to satisfy an order for security for costs…None of the arguments advanced by the moving party undermine the Motion Judge’s conclusions on the two prongs of r. 61.06(1)(a) and her assessment of the justice of the case.“
Thanks for reading,