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Estates - Estate Procedures [RCP R75]. Giann v. Giannopoulos
In Giann v. Giannopoulos (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here from a dismissed "motion for directions .... under r. 75.06 [SS: 'Application or Motion for Directions'] of the Rules of Civil Procedure":[4] Bobby and Bessie (the “appellants”) applied for a declaration that their father lacked capacity or was unduly influenced by Nick and Yiota (the “respondents”) as of September 1, 2018, including when he made his 2021 will as well as certain inter vivos transfers of property. They sought to have Mr. Giannopoulos’ 2016 will recognized as his last valid will. The appellants then brought a motion for directions to permit them to access Mr. Giannopoulos’ financial records, his lawyers’ files, and his medical records under r. 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[5] To succeed, a moving party under r. 75.06 must “adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded”: Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 89, leave to appeal refused, [2016] S.C.C.A. No. 207. Put another way, the appellants, as the party disputing the validity of the 2021 will, had the burden of adducing evidence that called into question the validity of the will and if they were unable to do so, or the respondents were able to answer the challenge, the motion should have been dismissed. But, if the appellants displaced their burden, they could proceed to challenge the validity of the will with the benefit of the procedural orders that they sought: Neuberger, at para. 89.
[6] Applying the principles set out in this court’s decisions in Neuberger and Johnson v. Johnson, 2022 ONCA 682, 81 E.T.R. (4th) 7, leave to appeal refused, [2022] S.C.C.A. No. 444, the application judge recognized his role in analyzing the evidence in this “preliminary vetting process”. He explained that he was not required to assess the truth of the evidence, rather, he was only to assess whether the evidence, if accepted, would support the claim advanced. He described his role as follows:I am not considering if the applicants’ evidence is true. Rather, I am looking at whether the evidence that they adduce actually puts in issue the capacity of the deceased or is prima facie evidence of undue influence and, if so, whether the evidence of the respondents is a complete answer. [Emphasis added.] ....
(i) Standard of Review
[17] As stated above, the test on a r. 75.06 motion requires the appellants to meet the minimal evidentiary threshold articulated by this court in Neuberger in order to justify subjecting the estate to the expense of documentary discovery: Johnson, at para. 17. Determining whether this test is met involves a careful review and limited weighing of the parties’ evidence. The application judge’s assessment of the evidence and factual findings are owed considerable appellate deference, absent an error in principle: Johnson, at paras. 15, 20; Bitaxis Estate v. Bitaxis, 2023 ONCA 66, at para. 5, 7, leave to appeal refused, [2023] S.C.C.A. No. 147.
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[31] As previously stated, it was the appellants’ burden to adduce or point to some evidence which, if accepted, would call into question the validity of the 2021 will: Neuberger, at para. 89. The respondents were not required to adduce any particular evidence. In the absence of palpable and overriding error, there is no basis to interfere with the application judge’s assessment of the evidence. . Bell v. Randell
In Bell v. Randell (Ont CA, 2024) the Ontario Court of Appeal notes the summary procedure for estate matters [R75.08 'Claims against an Estate']:[3] The appellant complains that the matter was determined in a summary manner instead of by way of pleadings and a trial. As cited by the motion judge, r. 75.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides for the summary determination of Estate matters. The appellant did not, at any point prior to the hearing, bring a motion for any other procedure to be followed as permitted by Rule 75.
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