Whaley Estate Litigation Newsletter Vol.4 No. 9 December 2014



Thank you for your continued feedback, comments, enquiries and contributions at: newsletter@whaleylawyers.com


Whaley Estate Litigation provides litigation, mediation and dispute resolution services throughout Ontario to you, or your clients:

  • Will, Estate, Trust Disputes
  • Advising Fiduciaries
  • Dependant Support Claims
  • Passing of Estate, Trustee, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board 
  • End of Life Decisions
  • Treatment Decisions
  • Elder Law
  • Elder Financial Abuse
  • Solicitor's Negligence
  • Agency Services
  • SDA, S.3 Counsel
  • Mediation
  • Opinions*

* Albert Oosterhoff, Professor Emeritus Western University, Counsel at WHALEY ESTATE LITIGATION, consults on matters within his areas of expertise, providing opinions concerning Wills, Estates, Trusts and related Property matters. Albert provides legal opinion and as such litigation support services to lawyers, law firms and their clients.


Please Enjoy, 


Kimberly A. Whaley






Albert Oosterhoff's interview with Michael Benedict on: "Devil can be in details when drafting Wills" can be accessed at:






Kimberly's article: "Remedy for a broken family promise: Ontario appeal court looks at proprietary estoppel in a pair of cottage cases" was published in The Lawyers Weekly, December 5, 2014, Vol. 34, No. 29, Pages 10-11, and can be accessed at: 



Download a PDF




Link to website: http://lco-cdo.org/en/rdsp-final-report



April 2014, Issue 29-4


Kimberly's article: "Spousal Claims Against Estates and Other Claims Arising Out of Remarriages- Part III", was published in Money and Family Law, Issue 29-4, pages 28-31.  A PDF copy is attached.


Link to PDF copy




Kimberly presented at this program on November 20, 2014, leading a discussion group on ethical scenarios.


Link to paper



Kimberly Whaley and Heather Hogan recently donated their time and expertise to a good cause: they recorded two podcasts about power of attorney litigation for The Power of Attorney Project. This Project is a two year technology-based project that brings together a wide variety of experts from various industries and disciplines to educate adult children and older adults about Power of Attorney issues. We will update you when the podcasts have been posted. In the meantime, you can read more about the Project - and listen to other podcasts from other experts, including Mark Handelman and Dr. Michael Gordon - here:







Whaley Estate Litigation

600-45 St. Clair Avenue West

Toronto, ON M4V 1K9









WEL published a book, in-house, comprised of a selection of collaborative firm materials on, "WEL ON FIDUCIARY ACCOUNTING". We compiled this resource as a tool for use by our clients and for our colleagues and friends. The book has been uploaded as a PDF. Please feel free to use it.



Click to download

If you wish to receive a hard copy while we have some left please send Kim an email with your request.


Birute Lyons, Senior Estates Law Clerk with over 30 years of experience in reviewing Estate and Fiduciary accounts has joined us full time as our resident in-house resource in support of our fiduciary accounting practice both in contested and uncontested account proceedings.


We are finding almost every piece of litigation has an accounting element to it these days, whether formal in a court application, or informal and as such we have found a need to offer competent assistance in both identifying and in remedying accounting issues. Fiduciary transparency and accountability is an area of scrutiny and growth. It is important that a strategy is adopted to properly address these issues.






Trotter Estate, 2014 ONCA 841 (CanLII) [1]




Court of Appeal Examines Proper Approach to Summary Judgment Motions in Will Challenges


In November, the Court of Appeal overturned a summary judgment order dismissing a Will challenge claim that involved allegations of undue influence, finding that the motion judge did not use the correct approach to determining that there was no "genuine issue requiring a trial" as set out by the Supreme Court of Canada in Hyrniak v. Maudlin[2] Since there were highly contested facts, the ONCA opined that a weighing of the evidence and a credibility analysis should have been completed in determining that a trial was not required, rather than a simple recitation of the evidence.




In Trotter Estate,[3] a married couple signed mirror wills in 1995, prepared by their local family lawyer. The wills left each of their children an equal share of their assets, excluding certain shares in their family company which were left to one son, John.


The father died in 1996. After her husband's death the mother (Audrie) executed four more Wills. The first in 1999 was drafted by the same local family lawyer, Mr. Gordon, who was also John's close friend. Two Wills executed in 2000 and 2002 were drafted by a lawyer not known to John. She switched lawyers as she was concerned that Mr. Gordon was not keeping her matters confidential. She told her new lawyer that John was trying to manipulate her and was being selfish, but was taking good care of her. The final Will in 2005 was once again drafted by Mr. Gordon. In this Will she left the entire residue of her estate to John and no real or personal property to her other children. Meanwhile, earlier Wills had divided the majority of the personal property between all of her children.


Also, in 2001, the mother transferred her house to herself and John as joint tenants and the family farm to herself and John as joint tenants in August 2003. Mr. Gordon acted as the lawyer for both inter vivos transfers.


Of further consideration, the fact that John spent 18 months renovating a small barn on the family farm. He billed his mother $740,000.00 for the renovation. The entire farm was worth only between $500-600,000.00. John claimed that the inter vivos transfers of the residence and farm were in lieu of payment of the invoices for the barn renovation.


The mother died on March 6, 2008. The siblings brought a claim challenging the Will and the inter vivos transfers, alleging undue influence by John.


Summary Judgement Motion:


John brought a summary judgment motion to dismiss his siblings' claim. Evidence on the motion included affidavits, cross-examination transcripts and documentary exhibits however, no oral evidence was heard. The motion lasted over six days.


John argued that the Will was valid, there was no undue influence and that the inter vivos transfers were reasonable. He had spent 18 months renovating the barn while his siblings had moved away. He had stayed and looked after their mother.


The siblings' evidence however "portrayed a pattern of isolation, domination and influence that John exerted over Audrie. There were detailed descriptions of John's explosive anger and temper. There was evidence of Audrie's fear of displeasing John." [4]


The Motion judge allowed the summary judgment and dismissed the siblings claim after reviewing nine points of evidence listed as follows:

  1. Relationship of dependency and control between mother and John
  2. Drastic change to the Wills
  3. Evidence of testamentary intention
  4. The mother's character
  5. The son's character
  6. The son's anxiety to get the benefits under the Will
  7. The absence of independent legal advice
  8. Evidence of John's dishonesty and his inconsistencies; and
  9. The moral claims of the other potential beneficiaries.

After this review the Motion judge concluded that the claim of undue influence was based on "bald allegations" and dismissed the Will challenge. She also concluded that the invoices for John's work were valid invoices for money he spent and that the challenge to the inter vivos transfers was subsumed within the challenge to the Will and therefore failed along with the Wills action.




The question examined by the Court on appeal: Did the motion judge use the proper approach to summary judgment in the face of highly contested facts?


The Court of Appeal concluded that the motion judge's approach to her conclusion was fundamentally flawed. She made palpable and overriding errors in relation to her analysis of the evidence, erred in her conclusion regarding the legal requirements for undue influence, and made conclusory determinations on important factual and legal issues in the dispute without conducting a credibility analysis. [5]


If the motion judge rejected the evidence on undue influence, she needed to explain why.  This required a credibility analysis pursuant to expanded judicial powers under rule 20.04(2.1) of the Rules of Civil Procedure to weigh the evidence, evaluate the credibility of the appellants' deponents and draw reasonable inferences.


The Appeal Court examined the allegations of undue influence and did not find them to be "bald allegations":


"There are repeated references in the motion judge's reasons to the appellants' "bald allegations", implying that the evidence before her on its face was sufficient for her to conclude that there was no genuine issue requiring a trial. A review of the record, however, reveals that the allegations were not bald. There was evidence concerning John's anger, his temper, his efforts to keep Audrie isolated from Kate, Audrie's fear of him, her dependency upon him, his attempts to manipulate her and her fear of being sent to a nursing home. There was evidence that Audrie transferred the farm property to John because she felt indebted to him for money he put into the barn. He sent her invoices for an amount that was approximately $200,000 more than the value of the property itself. The invoices alone support the appellants' claims of undue influence and fraud.


There was evidence of control and domination on the one hand and fear and vulnerability on the other. These are key components of an allegation of undue influence. . . The motion judge's conclusion that the evidence raised by the appellants - standing on its own - consisted only of bald allegations and did not give rise to the requirement for a trial reflects a misapprehension of the evidence.[6]"


The motion judge's conclusion that there was no undue influence is summed up in the following statements, at paras. 145 and 180 of her judgment:


"The inescapable finding that does not require a trial to fully appreciate is that Audrie was nobody's fool. I find that the record before me gives a full appreciation of what Audrie wanted for herself and how she went about making it happen.


These conclusions do not address the circumstances that were potentially indicative of undue influence: Audrie's vulnerability and dependency, the allegations that Audrie felt she had to please John despite her own wishes, the allegations of domination and control, questions about the confidentiality and independence of her legal advice and instructions, and Audrie's statements to an independent lawyer that John was trying to manipulate her: Scott v. Cousins, at para. 114; Gironda v. Gironda, 2013 ONSC 4133, 89 E.T.R. (3d) 224, at para. 77. 


Nor do the motion judge's conclusions accurately capture the law of undue influence. Audrie could be "nobody's fool" and want certain things for herself, yet still be subject to undue influence. Audrie could falsely believe that she was heavily indebted to John as a result of his inflated invoices and thereby feel obliged, contrary to her wishes, to do what he wanted. A person may appreciate what she is doing but be doing it as a result of coercion or fraud: see Vout v. Hay, [1995] 2 S.C.R. 876, per Sopinka J., at para 29.[7]"


The analysis of the barn invoices was also found to be flawed as the motion judge did not adequately address the reasonableness of the invoices, nor their possible effects on the mother's intentions. She made palpable and overriding errors in her assessment of Audrie's motivations for transferring the farm property.


The Proper Approach:


The Court of Appeal reviewed the proper approach:


In Hryniak, the Supreme Court established a two-step process that motion judges must follow on a summary judgment motion. First, a motion judge is to determine - based only on the evidence before her - whether there is a genuine requiring a trial. If not, then summary judgment should be granted. There will be no genuine issue requiring a trial when the written record (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at para. 49. 


The motion judge's reference to "bald allegations" implies that the written record on its face was sufficient to conclude that there was no genuine issue requiring a trial. This would be the equivalent to dismissing the action at step one of Hryniak.


However, as set out above, the allegations were not bald. The evidence conflicted. The appellants' evidence demonstrated a genuine issue requiring a trial.


At this point, a motion judge may, at her discretion, move to step two of Hryniak, where she must consider whether a trial can be avoided by using the powers granted under rules 20.04(2.1) and (2.2) to weigh the evidence, evaluate credibility, draw reasonable inferences and call oral evidence. These discretionary powers are presumptively available unless it is in the interests of justice to exercise them only at a trial.


In the present case, the motion judge recited the evidence but did not weigh it, evaluate it or make findings of credibility. Thus, even on the lower threshold of Hryniak, the approach was flawed [8]


The evidence in this case was extensive and conflicting. The allegations were not bald and the motion could not be resolved on the basis that there was no genuine issue requiring a trial on the face of the evidence alone. Rather, credibility assessments, a weighing of the evidence and possibly oral evidence were required. The motion judge's conclusory findings do not provide the analysis or reasoning necessary to support her ultimate conclusion that there was no undue influence. [9]


The Court also noted that a summary judgement order may have been appropriate had the motion judge exercised her powers under rule 20.04(2.2) to hear oral evidence, which she did not seek to do.



Since Hyrniak, summary judgement motions are becoming more common. However, there may still be a struggle with how to apply Hyrniak and address the Court's expanded powers under the Rules. This case provides litigators with further helpful guidance on the proper approach to be taken on a summary judgment motion where there are highly contested facts.

[1] Trotter Estate,  2014 ONCA 841

[2] 2014 SCC 7.

[3] 2014 ONCA 841.

[4] At para 28.

[5] At para. 45.

[6] At paras.51-53.

[7] At paras. 60-62.

[8] At paras. 72-76.

[9] At para. 79.





1. STEP Canada - Guardianships: Dealing with Minors and Adults Under Disability

January 14, 2015

Co-chairs: Kimberly Whaley, Whaley Estate Litigation and Craig Vander Zee, Torkin Manes LLP

Speakers: Kimberly Whaley, Kenneth  Goodman, The Public Guardian and Trustee;Steve Adams, Comptroller and Accountant of the Supreme Court of Justice; and Linda Waxman, OCL



2. OBA Institute:  No Bones About It: Critical Issues and Essential Updates in Trusts and Estates Law

February 4, 2015

Co-Chairs:  Jane  E. Martin, Ameena Sultan



3. STEP Canada - Financial Abuse: Detection and Intervention

February 11, 2015

Chair: Kimberly Whaley 

Speakers:   Doug Melville, Ombudsman and CEO for Banking Services and Investments (OBSI); Fiona Crean, Ombudsman for the City of Toronto; and  Laura Tamblyn Watts LL.B., Elder Concepts



4. STEP Ottawa - Decisional Capacity

February 18, 2015

Speakers: Kimberly Whaley, Ameena Sultan  and Dr. Ken Shulman



5. STEP Canada - The Transfer of Wealth including the Family Cottage    

April 15, 2015  Co-Chairs: Rachel Blumenfeld and Elaine Blades

Speakers: Gwen Benjamin, Wilson Vukelich LLP and Justin de Vries, de Vries Litigation



6. Estate Planning and Litigation Forum, Cambridge, Langdon Hall

April 26 - 28, 2015

Speaker: Kimberly Whaley


7. LSUC 6-Minute Estate Lawyer, May 6, 2015

Speakers: Kimberly Whaley, Estate Court Update


8. STEP Canada- Elder Care: A Practical Approach, May 13, 2015

Co-Chairs: Chris Clarke and Greg McNally

Speakers: Mike Love, Account Executive , Legacy Private Trust; Dr. R. Rupert,     Rupert Case Management; Audrey  Miller, Managing Director, Elder Caring Inc.,  and  Audrey Miller & Associates; and Trevor Parry M.A., LL.B, LL.M (Tax), TEP, Executive VP and National Sales Director at GBL Actuaries and Consultants



9. Elder Abuse Conference, Ontario Police College, Aylmer Ontario

May 20, 2015, Predatory Marriages

Speaker: Kimberly Whaley 


10. ILCO Conference, May 29, 2015

Speaker, Kimberly Whaley and Heather Hogan



11. LSUC Program: Capacity To Marry, Divorce, Separate, Divorce, And Live Common Law, June 9, 2015

Speaker: Kimberly Whaley

Chair: Jan Goddard and Nimale Gamage


12. The Scarborough Hospital's Annual Geriatric Education Day, Scarborough General Hospital: Planning for Future Disability

June 12, 2015

Speaker: Kimberly Whaley


14. STEP CANADA National Conference, June 18-19, 2015

Attacking and Defending Gifts

Speaker: Kimberly Whaley with John Poyser, Traditional Law LLP


15. LSUC, Practice Gems, The Administration of Estates 2015

September 10, 2015

Chair: Kimberly Whaley 


16. LSUC Estates Summit

October 7 and 8, 2015


Speakers: Kimberly Whaley and John Poyser 


17. CCEL 2015 Elder Law Conference, BC

Capacity and Predatory Marriages

November 12-15, 2015

Speaker: Kimberly Whaley 




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This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance.  This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.


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Contact Info

45 St. Clair Ave West
Suite 600
Toronto, ON, M4V 1K9
Tel: (416) 925-7400 
Fax: (416) 925-7464

Kimberly A. Whaley
(416) 355-3250
Mark Handelman
Firm Counsel
(416) 355-3254

Albert H. Oosterhoff
Firm Counsel
(416) 355-3266
Ameena Sultan
Associate Lawyer
(416) 355-3258


Benjamin D. Arkin
Associate Lawyer
(416) 355-3264 

Heather B. Hogan
Associate Lawyer
(416) 355-3262
Deborah Stade
Office Manager
(416) 355-3252
Bibi Minoo
Estates Clerk
(416) 355-3251

Birute Lyons
Law Clerk
(416) 355-3259

Marylin Tait 

Legal Assistant

(416) 355-3255


Francesca Latino

Legal Assistant

(416) 355-3257

Celine Byer

Office Coordinator

(416) 355-3253






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