May 8, 2014

Lorraine Coombs died on April 27, 2012, leaving an estate worth approximately $756,249.00.  Her Last Will and Testament left her house and the residue of her estate to one of her four daughters, Susan Coombs (“Susan”).  Two of her other daughters, Diane Fergueson (“Diane”) and Charlene Coombs (“Charlene”), each received $60,000 and another daughter, Donna Rivers (“Donna“), received $15,000.

Diane and Charlene challenged the validity of Lorraine’s Will.  Diane and Charlene also alleged that Susan had been improperly using the contents of jointly-held accounts she had with Lorraine.

Justice Brown had previously determined that he would case manage the proceedings.  At the case conference held on April 3, 2014, (Estate of Lorraine Coombs ONSC 2154) Justice Brown made quick work of ensuring that the will challenge moved forward without further ado.

First, he determined that examinations for discovery were not required. While  a prior Order Giving Directions mandated them (the parties had blown through the court-ordered timetable long ago), cross-examinations had already been held in the context of a motion Diane and Charlene brought for preservation of the joint accounts.  As such, Justice Brown ordered that Diane, Charlene, Susan and Donna  were entitled to exchange written interrogatories.  A two-hour examination for discovery of the drafting solicitor was permitted. Tight timetables were imposed.

Next up, Justice Brown refused to schedule a summary judgment motion that Susan had proposed to bring against the Will challenge. Citing the Supreme Court of Canada’s decision in Hryniak v. Mauldin, Justice Brown found that Susan’s summary judgment motion would be “grossly disproportionate” given the modest size of the estate, and the fact that the significant credibility issues at play required some viva voce evidence. He went on to order a 3-4 day “hybrid trial” with  affidavit evidence serving as a party’s evidence-in-chief, and time limited viva voce cross-examinations.  Affidavits of non-party witnesses would be filed where possible, otherwise a detailed “will say” of the anticipated non-party witness evidence was required to be served in advance of trial.

Perhaps most importantly, Justice Brown’s decision makes clear that such hybrid trials should be the rule, rather than the exception, in the case of Will challenges in modest estates:

My experience with these modest, “one house” estate will challenge cases – which one often sees in Toronto – has led me to conclude that the most proportionate way to dispose of such proceedings is to limit pre-hearing discovery and to direct a short hybrid trial…In my view,  sending these second-generation sibling-rivalry-will-challenge-in-modest-estates cases to a quick trial not only represents the most proportionate way to deal with this type of legal dispute, but I think the judiciary is under an obligation to our local – and increasingly aging – community to develop a mechanism by which to deal quickly, but fairly, with these types of will challenges.  They will only increase in number over the coming decade as the baby boomer generation begins to pass away.

Finally, Justice Brown dispensed with the need for a mandatory mediation. He assessed that the hostility between Diane and Susan would make such a mediation unproductive – though he noted that as the parties prepared for trial, the willingness to engage in mediation might well increase as their “pocketbooks begin to sing a bit more loudly.”

Until next time, dust off those draft Orders Giving Directions…