All About Estates

Summary Judgment in Estate Litigation, and the Role of a Financial Advisor as a Witness

It is widely known by estate litigation lawyers that the courts are clogged with disputes, often leading to lengthy delays in the obtaining hearing or trial dates.  Summary judgment is one way that the courts can decide cases efficiently.  To achieve a just result, a lengthy trial with oral testimony is not required in every case, and where a trial can be avoided, court resources can be allocated elsewhere.   A recent decision by the Ontario Superior Court of Justice in Bell v. Randell,[i]  illustrates how the court can reach a decision on a summary basis, preventing the need for a trial.  The case also involves the role a financial advisor may play in helping to determine if their client had testamentary capacity when a will was made.


Bell v. Randell involved a dispute about the validity of a will.  The Applicant alleged that the Deceased was unduly influenced and lacked testamentary capacity, so the will should be set aside.  The Executor, who was named in the will as one of the beneficiaries, brought a motion to confirm her status as the Estate Trustee, to reissue the Certificate of Appointment of Estate Trustee, to remove a Certificate of Pending Litigation filed against the Deceased’s property, to direct that the Applicant bore the responsibility for interest owing on specific legacies, and to request damages.

The Applicant argued that a trial was required to determine the validity of the Deceased’s will.

Summary Proceeding

Prior to the motion for summary judgment, the parties had the benefit of examining the two lawyers who prepared the will in question, and the Deceased’s financial advisor.  The financial advisor was examined as a non-party under oath.

The court held that a summary determination was appropriate in this case.  Rule 75 of the Rules of Civil Procedure[ii] pertain to contentious estate matters.  Rule 75.08(5) states that when a claim is made against an estate, a trial “shall proceed in a summary manner unless the judge considers it appropriate to give directions as to issues, parties and pleadings.”  So while in most estate litigation cases, a trial is ordered, according to the Rules, hearing matters in a summary way should be the default way of proceeding.

The procedures for hearing a claim against an estate in a summary fashion are set out in Rule 75.06(d).  The Rules of Civil Procedure are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits” (Rule 1.04(1)).

In this case, the judge emphasized how the parties had the opportunity to cross-examine the witnesses, and holding a trial would not expand on the evidence or offer anything further of benefit so that a decision could be made.  The parties examined those who were working with the Deceased in and around the time when the will was signed, and the transcripts were entered into evidence.  The lawyers who drafted the will and met the Deceased to execute it had no independent recollection of either drafting the will or meeting the Deceased.

The judge also considered section 13 of the Evidence Act,[iii]  which requires that independent, corroborating evidence is required in a claim against an estate.  The legislation applied to both parties, emphasized the court:

In any action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some material evidence.

The judge found that there was no evidence to corroborate the Applicant’s claims of undue influence or lack of testamentary capacity.  For the sake of efficiency and to save court resources, the judge found that a trial was not required to reach a result, and finally to conclude a case that had held up the administration of an estate from 2019 to 2024.  The court held that the Applicant had failed to rebut the presumption that the Deceased had made a duly executed will with knowledge, approval and testamentary capacity.

The Evidence of the Lawyers and the Financial Advisor

The court accepted that the Deceased’s will drafting lawyers, while they had no recollection of meeting with the Deceased or making the will, had followed their usual practise of making and executing wills with the Deceased.  The evidence of the lawyers was that as they did not have notes in their file about the Deceased’s capacity, they must not have been concerned about it, because their normal practise was to add a note to the file if they were concerned about a client’s capacity.

The evidence of the Deceased’s financial advisor was important to the result in this case.  The judge held that the financial advisor’s evidence corroborated the Estate Trustee’s claim that the Deceased had testamentary capacity.  The financial advisor had a long-term working relationship with the Deceased and had been her financial advisor from 1990 until when she passed away.  The financial advisor provided supporting evidence that the Deceased was of sound mind when she made her will.  The advisor confirmed that the Deceased had advised him that she was making changes to her will, and that at the time, the Deceased was capable of understanding what financial assets she had and could appreciate the consequences giving directions relating to estate planning.


This case is a good illustration of how estate cases, where appropriate, can be dealt with by the court in a summary manner, and the type of evidence that is important to a decision about the validity of a will.

Holly LeValliant, Estate and Trust Consultant, Scotiatrust


[i] 2024 ONSC 579 (CanLII)

[ii] R.R.O. 1990, Reg. 194: Rules of Civil Procedure

[iii] Evidence Act, R.S.O. 1990, c. E-23.

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