All About Estates

Frivolous Notices of Objection Can be Struck Out

Counsel faced with responding to frivolous objections to an application for a certificate of appointment of estate trustee may wish to consider rule 25.11 of the Rules of Civil Procedure. Rule 25.11 allows the court to strike out (all or part of) a pleading, without leave to amend, on the ground that the pleading is scandalous, frivolous or vexatious.

In Dessisa and Wolde v Demisie the Applicants, Dessisa and Wolde, brought an application to strike out a Notice of Objection filed by the former common-law spouse of the deceased, Demisie.

Demisie resided in a common-law relationship with the deceased for more than 25 years. In 2003, the deceased and Demisie purchased a home on Granger Avenue in Toronto, taking title on the home as joint tenants. On November 7, 2016, during the course of their relationship, the deceased made a will in which he appointed Demisie as his executor. He left the residue of his estate to Demisie and his sister who resided in Ethiopia.

In October 2016, the deceased was diagnosed with cancer and hospitalized. The evidence presented in the litigation suggested that the deceased was physically weak during his hospitalization, but mentally alert.

On January 22, 2017, Demisie and the deceased separated. Following their separation, the deceased made a new will appointing the Applicants (Dessisa and Wolde) as co-executors of his estate. He left his entire estate to Dessisa with a gift over to Wolde if Dessisa pre-deceased him. In addition, the deceased appointed Dessisa and Wolde jointly as his attorneys for property.

Around the same time, the deceased commenced a family law application in Superior Court against Demisie. Eventually, the deceased and Demisie settled the terms of their separation and signed Minutes of Settlement pertaining to spousal support, property, the Granger home, and the deceased’s pensions and life insurance policy.

On March 2, 2017, the deceased severed the joint tenancy on the Granger home.

The deceased passed away on July 31, 2018. Demisie did not receive the fully signed Minutes until several weeks later.

When Dessisa attempted to apply for probate, Demisie objected. Demisie alleged that Dessisa was behind both the family law proceeding and the deceased’s decision to sign a new will. She alleged that the deceased did not have the capacity to sign the new will (or powers of attorney for that matter), or that, if he did, he was unduly influenced by Dessisa and/or signed under duress. Further, Demisie alleged that Dessisa signed the Minutes of Settlement after the deceased’s death using the (improperly obtained) power of attorney.

The court found, however, that Demisie failed to adduce any evidence which would put the capacity of the deceased in question with respect to the will, powers of attorney, transfer of the Granger home, or the Minutes of Settlement. The court referred to Demisie’s allegations as “bald” and “not supported or corroborated by any other evidence.”

In the absence of any credible evidence to support the allegations in Demisie’s Notice of Objection, the court struck it out under rule 25.11 on the grounds that the pleading was frivolous or vexatious. Partial indemnity costs were awarded against Demisie in the amount of $23,588.

This case serves as a good reminder that will challenges should be carefully brought – before launching an attack, the moving party should carefully review the supporting evidence. If they don’t have much more than bald allegations and a gut feeling, they may face a quick dismissal and cost consequences.

About Noah Haynes
Noah Haynes is a lawyer at de VRIES LITIGATION LLP. His practice focuses on estates, trusts, guardianship, and capacity disputes.

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