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| Slater vs. Slater |
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| IN THE MATTER OF the Estate of Helen Jean Slater, deceased |
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Between
James Slater and Michael Slater, applicants, and Victor Slater et
al., defendants |
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[2004] O.J. No. 4054
Court File No. 01-2546/02 |
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Ontario Superior Court of Justice
Wilton-Siegel J. |
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Heard: May 13, 2004.
Judgment: October 5, 2004.
(39 paras.) |
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Susan J. Stamm, for the applicants.
Larry J. Levine, Q.C., for the respondent. |
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| Wills — Testamentary instruments — Preparation and execution — Evidence and proof — Practice — Judgements and orders — Summary judgements — Bar to application, existence of issue to be tried. |
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| Motion by the executors for an order of summary judgment with respect to the validity of the testatrix's will. Victor argued that James had exercised undue influence over the testatrix. However, the only evidence was Victor's unsupported allegations to this effect. Relying on two isolated mistakes about relations, he also made allegations respecting the possible onset of dementia or other incapacitating conditions, despite not having seen the testatrix for six years. The testatrix's doctor of fifteen years stated that he never formally assessed her mental status as he never felt there was any indication to do so. According to Reagan, who had prepared the will, one of the mistakes was simply a typographical error on his part. Reagan, also testified that the testatrix had not intended to make Victor an executor. Victor also alleged that the front page of the will had been changed to the present version. He pointed to the inclusion of Renwick's children as beneficiaries. He relied on the affidavit of the testatrix's friend, who stated that the testatrix had asked her for Reagan's phone number while they were on a trip because she wanted to do something for Renwick's children. However the friend could not confirm that a call was made to Reagan. Reagan was not qualified to prepare a will. |
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| Held, Motion allowed in part. |
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| There was a genuine issue for trial on whether the will was the will executed before Reagan or if a page of the will had been changed. The testimony of the friend could not be disregarded nor could the fact that the will did contain a provision consistent with the intention of including Renwick's children. Findings of fact on a critical issue which went to the validity of a will, and which invoked the Court's inquisitorial function as a surrogate court, should be left for the trial judge. There was also the issue of Reagan's involvement in the preparation of the will and his credibility. With respect to Victor's allegations of undue influence and lack of testamentary capacity, he had not established a genuine issue for trial. Accordingly, the motion for summary judgment on these issues was granted. |
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