1. Introduction
The recent decision, Joy Estate v McGrath,[1] is another case in which the court had to consider the well-known principles that govern determining testamentary capacity, and the governing principles on costs orders in estate litigation. These principles are not new, but questions about them continue to arise, so it is worthwhile to consider them anew. EE Gillese JA wrote the judgment in the case and, as always, it is clearly and carefully argued.
In my discussion of the case, I have followed her Honour’s reasons closely and in considerable detail to indicate how important it is for a court to follow the several principles carefully and not make unwarranted assumptions. Regardless, the case is well worth reading in its entirety.
2. Facts
Mr Joy (‘the deceased’), and his business partner, Steve Ramsundarsingh (‘Steve’), operated two electrical businesses. They reorganized the businesses in 2017 and made Dexter Ramsundarsingh (‘Dexter’), the second Respondent),[2] the son of Steve, the owner of all the common shares of the two businesses, while they retained the preferred shares. The Appellant, Michael McGrath, is the deceased’s stepson and the deceased was the only father he has ever known. The Appellant has a son, Michael Jr, whom the deceased treated as his grandson and to whom he was very close. Michael Jr was represented by the Office of the Children’s Lawyer (‘OCL’) The deceased married the first Respondent, Ms Joy, in 2016. Their marriage was troubled, and they often argued about finances. He left her more than once during the marriage.
The deceased made three successive wills, all of which were in his handwriting. The 2014 Will left bequests to the Appellant, Michael Jr, Dexter, and Ms Joy.
The 2016 Will made bequests to the same four people:
(a) his cabin in Newfoundland to the Appellant and Michael Jr;
(b) a specified garage to the Appellant and Michael Jr;
(c) a specified car to Michael Jr;
(d) a specified boat, skidoo trailer and skidoo to the Appellant;
(e) his ‘50% shares’ of the businesses and a specified unit in Brampton to Dexter;
(f) from the proceeds of his $500,000 insurance policy: $5,000 a year for 10 years to maintain the Newfoundland cabin, $300,000 to be held in trust for Michael Jr until he turned 27, and $150,000 to the Appellant; and
(g) the proceeds of his $600,000 insurance policy to Ms Joy after taxes were paid.
The will named Steve ‘to carry out my request’ and named him his executor.
The deceased made the 2019 holograph Will (the Suicide Note) shortly before committing suicide. In it he apologized for killing himself. Using profanities, he said that Ms Joy ‘drove me to this’ and that ‘I’m beyond my control because of her’. He asked Steve to make sure that Ms Joy did not ‘get anything and continued: ‘This is my declaration that anything in my will that has her name on it is VOID. Everything goes to my stepson Michael & grandson Michael’. He also asked Steve to make sure that Ms Joy was not at his funeral. And he directed, ‘I want my ashes spread in the pond in front of my cabin’.
The evidence showed that the deceased consumed a lot of alcohol and smoked hash oil on the day before he died. However, he had never been diagnosed, treated, or hospitalized for alcoholism, substance abuse, or other mental health issues. He was prescribed medical-grade cannabis for bodily injuries he had sustained.
Steve renounced his right to administer the estate and therefore the Appellant brought an application to probate the Suicide Note as the deceased’s last will. The Appellant submitted the expert report of Dr Mark Sinyor, a psychiatrist and an expert on suicidality. The expert was not able to make a definitive statement on whether the deceased was intoxicated by alcohol, by cannabis, or both when he wrote the Suicide Note or whether the potential intoxication might have meant that he lacked testamentary capacity. Ms Joy and Dexter opposed the application.
The parties agreed that the Suicide Note met the requirements for a valid holograph will, but the Respondents argued that the Appellant had failed satisfy the onus of proving that the deceased had testamentary capacity. In the alternative Dexter argued that if the Suicide Note were found to be a valid will, it should be construed as a codicil to the 2016 Will.
The application judge concluded that because of the deceased’s consumption of alcohol and drugs on the day before he died, he lacked testamentary capacity when he wrote the Suicide Note. He also ordered the estate to pay a small portion of the costs of the Respondents and the OCL and ordered the Appellant to pay most of their costs. He was guided by the following evidence in reaching his conclusion:
(a) Steve believed that the deceased was subject to substance abuse. Dexter thought the deceased was drunk when he spoke with him on the evening before he wrote the Suicide Note and a friend of Ms Joy’s son who spoke with the deceased later that evening on a facetime call thought he was drunk;
(b) Ms Joy testified that the deceased drank and used drugs all day and all evening on the day before he committed suicide;
(c) Dr Sinyor’s evidence was inconclusive of the deceased’s testamentary capacity and lacked the benefit of cross-examination evidence about the deceased’s history of drug and alcohol abuse and of his actual consumption the day before he died;
(d) the fact that the deceased wrote in the Suicide Note that he was beyond his control because of Ms Joy
(e) the handwriting on the Suicide Note ‘was sloppy and nearly illegible’; his sister testified that he was depressed; and the evidence showed that excessive use of alcohol and hash oil cigarettes were part of his daily life; and
(f) the Suicide Note was a ‘profanity laced diatribe against’ Ms Joy.
The Appellant appealed the application judge’s conclusion that the deceased lacked testamentary capacity and the costs order. The Court of Appeal allowed the appeal on both matters.
3. Analysis
3.1 Standard of Review
Justice Gillese held that no deference was owed to the application judge’s conclusion that the Appellant had failed to prove that the deceased had testamentary capacity. He did set out the correct legal principles for determining testamentary capacity but failed to apply them. This was an error in principle and warranted the intervention of the Court of Appeal.
3.2 Legal Principles
Her Honour then stated and applied the well-known principles for determining testamentary capacity. These require that a testator must have a ‘sound disposing mind’ and a sound disposing mind means that the testator must:
(a) understand the nature and effect of a will;
(b) recollect the nature and extent of his or her property;
(c) understand the extent of what he or she is giving under the will;
(d) remember the people that he or she might be expected to benefit under the will; and
(e) where applicable, understand the nature of the claims that may be made by persons he or she is excluding under the will.
3.3 Application of the Principles
(a) Understanding the nature and effect of a will
Clearly, the deceased understood the nature and effect of a will. He had never sought legal advice to make a will, but he made the two earlier wills as well as the Suicide Note. Similarly, he clearly knew he was writing a will when he wrote the Suicide Note. It contained the kind of language that is common in wills.
(b) Recollecting the nature and extent of his property; and
(c) Understanding the extent of what he was giving under the will
Although the deceased was in financial difficulties when he died, it is clear from the Suicide Note that he was aware of one of his significant assets, namely, the $600,000 insurance policy. He bequeathed it to Ms Joy in the 2016 Will but must have remembered that when he said in the Suicide Note that she would get nothing and that everything he gave to her in that Will was now ‘VOID’. He also remembered his cabin in Newfoundland. He did not expressly speak of his interest in the businesses, but that does not necessarily indicate that he did not remember it. In the 2016 Will he bequeathed his 50% interest to Dexter. Later he and Steve gave Dexter the common shares in the businesses, so he may have thought that he had meanwhile given Dexter his interest in the businesses. In particular, the Suicide Note disposed of all his assets and gave it to the Appellant and Michael Jr. Thus, the deceased did recollect the nature and extent of his property.
(d) Remembering the people that might be expected to benefit under his will
Both the Appellant and Michael Jr might be expected to benefit under his will, and they were also named in the 2014 and 2016 wills. Ms Joy and Dexter might also be expected to benefit under his will, and he did benefit them in the earlier wills. The fact that he did not benefit Ms Joy in the Suicide Note did not mean that he did not remember her. He clearly did but disinherited her. He did not mention Dexter in the Suicide Note but since he had already transferred his shares in the businesses to Dexter, he may have thought that he had already honoured his bequest in the earlier wills to him. Thus, this element of the test was met too.
(e) Understanding the nature of the claims people excluded from the will may make
This element was also satisfied because Ms Joy was better off financially than the deceased and owned the matrimonial home. The deceased would have realized that and therefore he would not have been concerned about any claim from Ms Joy.
3.4 Did the Decease Have a Sound Disposing Mind?
The application judge decided the question large because of the deceased’s use of drugs and alcohol, both in general and on the day before he died. But he failed to apply the legal principles already discussed. Justice Gillese then considered the points relied on in his decision.
(a) Substance abuse
Her Honour rightly held that it is an error to infer a lack of testamentary capacity based on the testator’s use of alcohol or drugs. If he suffers from a disorder or condition that might affect his testamentary capacity, that should be considered when applying the relevant legal principles. For this point she discussed the locus classicus on testamentary capacity, Banks v Goodfellow.[3] The testator suffered from paranoid delusions and Cockburn CJ applied the elements for determining whether he had testamentary capacity and paid careful attention to the testator’s condition. The court concluded that the testator was able to discern the elements of the legal test and found in the circumstances that the testator had testamentary capacity.
Her Honour also referred to Dujardin v Dujardin.[4] In it the testator’s testamentary capacity was also questioned because of his alcoholism and the application judge and the Court of Appeal took that into account in applying the relevant legal principles. Her Honour noted that neither court in the Dujardin case began from the premise that a pattern of heavy drinking suggested a lack of testamentary capacity. Instead, they decided whether the testator had testamentary capacity correctly by considering the evidence relevant to each element of the test.
Moreover, none of the witnesses who testified about the deceased’s drinking in this case, said that he presented as irrational, delusional, incoherent, or abnormal.
(b) Expert evidence
It was unsurprising that Dr Sinyor was unable to provide a definitive opinion on the question whether the deceased was intoxicated when he wrote the Suicide Note. No toxicology screen had been performed on the body and there was no clinical evidence of incapacity. But Dr Sinyor had been made fully aware of the deceased’s alcohol and substance abuse, and his report confirmed that none of suicide, alcoholism, or other substance abuse disorders, singly or in combination, are sufficient to infer lack of testamentary capacity.
(c) The appearance and language of the Suicide Note
Her Honour held that the factors relied on by the application judge in this regard (sloppy writing that was almost illegible, profanity, and the deceased’s statement that he was ‘beyond my control’ because of Ms Joy) were irrelevant in the absence of an explanation for how they were relevant to the elements of the issue of testamentary capacity. Thus, they could not be used to decide whether the deceased had testamentary capacity.
Consequently, the deceased had testamentary because he had a sound disposing mind, and the Appellant satisfied the onus on him of showing that he did.
3.5 Was the Suicide Note a Codicil to the 2016 Will?
This was Dexter’s alternative submission. Justice Gillese readily disposed of it. First, section 6 of the Succession Law Reform Act[5] states that a testator may make a valid holograph will. A will is different from a codicil. And since the court found that the deceased had testamentary capacity and because the Suicide Note satisfies the requirements of s. 6, it is his will and not a codicil. Second, the Suicide Note disposes of ‘everything’. To give effect to a bequest in a prior will would contravene that term.
3.6 Costs Orders
Justice Gillese found that the application judge mentioned the principles governing costs orders in estate litigation but failed to follow them. The modern approach to estate litigation is that the ordinary civil litigation approach to costs applies, that is, that the loser pays. But if there are reasonable ground on which the execution of the will or the testator’s capacity to make the will are questioned, it is in the public interest to resolve the questions without costs to those who question the validity of the will.[6] Thus, in deciding costs in estate litigation, the court must begin by determining whether one of the policy considerations applies. If it does, then normally the parties’ reasonable costs will be paid from the estate. If the court departs from this principle, it must justify it.
The application judge failed to take the necessary first step, proceeded on the basis that the civil litigation costs regime operated, and ordered the Appellant to pay most of the costs of the other parties. However, public policy considerations applied and thus the application was necessary to ensure that the estate was properly administered. Hence, the principle governing costs awards in estate litigation applied and the estate should bear the reasonable costs of the application. Contrary to the statement of the application judge that the Appellant acted unreasonably in bring the application and pursued his own self-interest in his attempt to oust the bequests to the Respondents, the Appellant acted reasonably. He had to bring the application because of the suspicious circumstances. Since the deceased’s conduct necessitated the litigation, all parties were entitled to their reasonable costs on the application and on the appeal, except that the OCL was not entitled to costs on the appeal. It gave no reason for changing its position on the appeal (from supporting the Appellant on the application to supporting Ms Joy on the appeal), and because it had very limited involvement on the appeal.
—
[1] 2022 ONCA 119.
[2] I mean no disrespect in referring to the father and son by their first names. I do it only to avoid confusion.
[3] (1870), LR 5 QB 549.
[4] 2018 ONCA 597.
[5] RSO 1990, c S.26.
[6] McDougald Estate v Gooderham, 2005, CarswellOnt 2407 (CA), paras 78-79; Neuberger Estate v York, 2016 ONCA 191, para 24; Sawdon Estate v Sawdon, 2014 ONCA 101, para 84.
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Written by: Albert Oosterhoff
Posted on: May 20, 2022
Categories: Commentary, WEL on the Street
1. Introduction
The recent decision, Joy Estate v McGrath,[1] is another case in which the court had to consider the well-known principles that govern determining testamentary capacity, and the governing principles on costs orders in estate litigation. These principles are not new, but questions about them continue to arise, so it is worthwhile to consider them anew. EE Gillese JA wrote the judgment in the case and, as always, it is clearly and carefully argued.
In my discussion of the case, I have followed her Honour’s reasons closely and in considerable detail to indicate how important it is for a court to follow the several principles carefully and not make unwarranted assumptions. Regardless, the case is well worth reading in its entirety.
2. Facts
Mr Joy (‘the deceased’), and his business partner, Steve Ramsundarsingh (‘Steve’), operated two electrical businesses. They reorganized the businesses in 2017 and made Dexter Ramsundarsingh (‘Dexter’), the second Respondent),[2] the son of Steve, the owner of all the common shares of the two businesses, while they retained the preferred shares. The Appellant, Michael McGrath, is the deceased’s stepson and the deceased was the only father he has ever known. The Appellant has a son, Michael Jr, whom the deceased treated as his grandson and to whom he was very close. Michael Jr was represented by the Office of the Children’s Lawyer (‘OCL’) The deceased married the first Respondent, Ms Joy, in 2016. Their marriage was troubled, and they often argued about finances. He left her more than once during the marriage.
The deceased made three successive wills, all of which were in his handwriting. The 2014 Will left bequests to the Appellant, Michael Jr, Dexter, and Ms Joy.
The 2016 Will made bequests to the same four people:
(a) his cabin in Newfoundland to the Appellant and Michael Jr;
(b) a specified garage to the Appellant and Michael Jr;
(c) a specified car to Michael Jr;
(d) a specified boat, skidoo trailer and skidoo to the Appellant;
(e) his ‘50% shares’ of the businesses and a specified unit in Brampton to Dexter;
(f) from the proceeds of his $500,000 insurance policy: $5,000 a year for 10 years to maintain the Newfoundland cabin, $300,000 to be held in trust for Michael Jr until he turned 27, and $150,000 to the Appellant; and
(g) the proceeds of his $600,000 insurance policy to Ms Joy after taxes were paid.
The will named Steve ‘to carry out my request’ and named him his executor.
The deceased made the 2019 holograph Will (the Suicide Note) shortly before committing suicide. In it he apologized for killing himself. Using profanities, he said that Ms Joy ‘drove me to this’ and that ‘I’m beyond my control because of her’. He asked Steve to make sure that Ms Joy did not ‘get anything and continued: ‘This is my declaration that anything in my will that has her name on it is VOID. Everything goes to my stepson Michael & grandson Michael’. He also asked Steve to make sure that Ms Joy was not at his funeral. And he directed, ‘I want my ashes spread in the pond in front of my cabin’.
The evidence showed that the deceased consumed a lot of alcohol and smoked hash oil on the day before he died. However, he had never been diagnosed, treated, or hospitalized for alcoholism, substance abuse, or other mental health issues. He was prescribed medical-grade cannabis for bodily injuries he had sustained.
Steve renounced his right to administer the estate and therefore the Appellant brought an application to probate the Suicide Note as the deceased’s last will. The Appellant submitted the expert report of Dr Mark Sinyor, a psychiatrist and an expert on suicidality. The expert was not able to make a definitive statement on whether the deceased was intoxicated by alcohol, by cannabis, or both when he wrote the Suicide Note or whether the potential intoxication might have meant that he lacked testamentary capacity. Ms Joy and Dexter opposed the application.
The parties agreed that the Suicide Note met the requirements for a valid holograph will, but the Respondents argued that the Appellant had failed satisfy the onus of proving that the deceased had testamentary capacity. In the alternative Dexter argued that if the Suicide Note were found to be a valid will, it should be construed as a codicil to the 2016 Will.
The application judge concluded that because of the deceased’s consumption of alcohol and drugs on the day before he died, he lacked testamentary capacity when he wrote the Suicide Note. He also ordered the estate to pay a small portion of the costs of the Respondents and the OCL and ordered the Appellant to pay most of their costs. He was guided by the following evidence in reaching his conclusion:
(a) Steve believed that the deceased was subject to substance abuse. Dexter thought the deceased was drunk when he spoke with him on the evening before he wrote the Suicide Note and a friend of Ms Joy’s son who spoke with the deceased later that evening on a facetime call thought he was drunk;
(b) Ms Joy testified that the deceased drank and used drugs all day and all evening on the day before he committed suicide;
(c) Dr Sinyor’s evidence was inconclusive of the deceased’s testamentary capacity and lacked the benefit of cross-examination evidence about the deceased’s history of drug and alcohol abuse and of his actual consumption the day before he died;
(d) the fact that the deceased wrote in the Suicide Note that he was beyond his control because of Ms Joy
(e) the handwriting on the Suicide Note ‘was sloppy and nearly illegible’; his sister testified that he was depressed; and the evidence showed that excessive use of alcohol and hash oil cigarettes were part of his daily life; and
(f) the Suicide Note was a ‘profanity laced diatribe against’ Ms Joy.
The Appellant appealed the application judge’s conclusion that the deceased lacked testamentary capacity and the costs order. The Court of Appeal allowed the appeal on both matters.
3. Analysis
3.1 Standard of Review
Justice Gillese held that no deference was owed to the application judge’s conclusion that the Appellant had failed to prove that the deceased had testamentary capacity. He did set out the correct legal principles for determining testamentary capacity but failed to apply them. This was an error in principle and warranted the intervention of the Court of Appeal.
3.2 Legal Principles
Her Honour then stated and applied the well-known principles for determining testamentary capacity. These require that a testator must have a ‘sound disposing mind’ and a sound disposing mind means that the testator must:
(a) understand the nature and effect of a will;
(b) recollect the nature and extent of his or her property;
(c) understand the extent of what he or she is giving under the will;
(d) remember the people that he or she might be expected to benefit under the will; and
(e) where applicable, understand the nature of the claims that may be made by persons he or she is excluding under the will.
3.3 Application of the Principles
(a) Understanding the nature and effect of a will
Clearly, the deceased understood the nature and effect of a will. He had never sought legal advice to make a will, but he made the two earlier wills as well as the Suicide Note. Similarly, he clearly knew he was writing a will when he wrote the Suicide Note. It contained the kind of language that is common in wills.
(b) Recollecting the nature and extent of his property; and
(c) Understanding the extent of what he was giving under the will
Although the deceased was in financial difficulties when he died, it is clear from the Suicide Note that he was aware of one of his significant assets, namely, the $600,000 insurance policy. He bequeathed it to Ms Joy in the 2016 Will but must have remembered that when he said in the Suicide Note that she would get nothing and that everything he gave to her in that Will was now ‘VOID’. He also remembered his cabin in Newfoundland. He did not expressly speak of his interest in the businesses, but that does not necessarily indicate that he did not remember it. In the 2016 Will he bequeathed his 50% interest to Dexter. Later he and Steve gave Dexter the common shares in the businesses, so he may have thought that he had meanwhile given Dexter his interest in the businesses. In particular, the Suicide Note disposed of all his assets and gave it to the Appellant and Michael Jr. Thus, the deceased did recollect the nature and extent of his property.
(d) Remembering the people that might be expected to benefit under his will
Both the Appellant and Michael Jr might be expected to benefit under his will, and they were also named in the 2014 and 2016 wills. Ms Joy and Dexter might also be expected to benefit under his will, and he did benefit them in the earlier wills. The fact that he did not benefit Ms Joy in the Suicide Note did not mean that he did not remember her. He clearly did but disinherited her. He did not mention Dexter in the Suicide Note but since he had already transferred his shares in the businesses to Dexter, he may have thought that he had already honoured his bequest in the earlier wills to him. Thus, this element of the test was met too.
(e) Understanding the nature of the claims people excluded from the will may make
This element was also satisfied because Ms Joy was better off financially than the deceased and owned the matrimonial home. The deceased would have realized that and therefore he would not have been concerned about any claim from Ms Joy.
3.4 Did the Decease Have a Sound Disposing Mind?
The application judge decided the question large because of the deceased’s use of drugs and alcohol, both in general and on the day before he died. But he failed to apply the legal principles already discussed. Justice Gillese then considered the points relied on in his decision.
(a) Substance abuse
Her Honour rightly held that it is an error to infer a lack of testamentary capacity based on the testator’s use of alcohol or drugs. If he suffers from a disorder or condition that might affect his testamentary capacity, that should be considered when applying the relevant legal principles. For this point she discussed the locus classicus on testamentary capacity, Banks v Goodfellow.[3] The testator suffered from paranoid delusions and Cockburn CJ applied the elements for determining whether he had testamentary capacity and paid careful attention to the testator’s condition. The court concluded that the testator was able to discern the elements of the legal test and found in the circumstances that the testator had testamentary capacity.
Her Honour also referred to Dujardin v Dujardin.[4] In it the testator’s testamentary capacity was also questioned because of his alcoholism and the application judge and the Court of Appeal took that into account in applying the relevant legal principles. Her Honour noted that neither court in the Dujardin case began from the premise that a pattern of heavy drinking suggested a lack of testamentary capacity. Instead, they decided whether the testator had testamentary capacity correctly by considering the evidence relevant to each element of the test.
Moreover, none of the witnesses who testified about the deceased’s drinking in this case, said that he presented as irrational, delusional, incoherent, or abnormal.
(b) Expert evidence
It was unsurprising that Dr Sinyor was unable to provide a definitive opinion on the question whether the deceased was intoxicated when he wrote the Suicide Note. No toxicology screen had been performed on the body and there was no clinical evidence of incapacity. But Dr Sinyor had been made fully aware of the deceased’s alcohol and substance abuse, and his report confirmed that none of suicide, alcoholism, or other substance abuse disorders, singly or in combination, are sufficient to infer lack of testamentary capacity.
(c) The appearance and language of the Suicide Note
Her Honour held that the factors relied on by the application judge in this regard (sloppy writing that was almost illegible, profanity, and the deceased’s statement that he was ‘beyond my control’ because of Ms Joy) were irrelevant in the absence of an explanation for how they were relevant to the elements of the issue of testamentary capacity. Thus, they could not be used to decide whether the deceased had testamentary capacity.
Consequently, the deceased had testamentary because he had a sound disposing mind, and the Appellant satisfied the onus on him of showing that he did.
3.5 Was the Suicide Note a Codicil to the 2016 Will?
This was Dexter’s alternative submission. Justice Gillese readily disposed of it. First, section 6 of the Succession Law Reform Act[5] states that a testator may make a valid holograph will. A will is different from a codicil. And since the court found that the deceased had testamentary capacity and because the Suicide Note satisfies the requirements of s. 6, it is his will and not a codicil. Second, the Suicide Note disposes of ‘everything’. To give effect to a bequest in a prior will would contravene that term.
3.6 Costs Orders
Justice Gillese found that the application judge mentioned the principles governing costs orders in estate litigation but failed to follow them. The modern approach to estate litigation is that the ordinary civil litigation approach to costs applies, that is, that the loser pays. But if there are reasonable ground on which the execution of the will or the testator’s capacity to make the will are questioned, it is in the public interest to resolve the questions without costs to those who question the validity of the will.[6] Thus, in deciding costs in estate litigation, the court must begin by determining whether one of the policy considerations applies. If it does, then normally the parties’ reasonable costs will be paid from the estate. If the court departs from this principle, it must justify it.
The application judge failed to take the necessary first step, proceeded on the basis that the civil litigation costs regime operated, and ordered the Appellant to pay most of the costs of the other parties. However, public policy considerations applied and thus the application was necessary to ensure that the estate was properly administered. Hence, the principle governing costs awards in estate litigation applied and the estate should bear the reasonable costs of the application. Contrary to the statement of the application judge that the Appellant acted unreasonably in bring the application and pursued his own self-interest in his attempt to oust the bequests to the Respondents, the Appellant acted reasonably. He had to bring the application because of the suspicious circumstances. Since the deceased’s conduct necessitated the litigation, all parties were entitled to their reasonable costs on the application and on the appeal, except that the OCL was not entitled to costs on the appeal. It gave no reason for changing its position on the appeal (from supporting the Appellant on the application to supporting Ms Joy on the appeal), and because it had very limited involvement on the appeal.
—
[1] 2022 ONCA 119.
[2] I mean no disrespect in referring to the father and son by their first names. I do it only to avoid confusion.
[3] (1870), LR 5 QB 549.
[4] 2018 ONCA 597.
[5] RSO 1990, c S.26.
[6] McDougald Estate v Gooderham, 2005, CarswellOnt 2407 (CA), paras 78-79; Neuberger Estate v York, 2016 ONCA 191, para 24; Sawdon Estate v Sawdon, 2014 ONCA 101, para 84.
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