Using Rule 25.11 to Strike a Notice of Objection

A Case review of Dessisa and Wolde v. Demisie¹

An individual who seeks to have a will admitted to probate begins proceedings by applying for a certificate of appointment of estate trustee with a will. A person opposed to the will being admitted to probate need only file an objection (or a caveat as it is still called in some provinces). The objection is simply a one-page document that is often filed in boilerplate fashion.² Regardless of the facts of the situation, the will challenger must raise grounds that put in issue whether the testator lacked testamentary capacity, and/or did not know or approve of the contents of the testamentary document in question (undue influence may be raised, but must be proved by the objector). In response to a proliferation of meritless objections, lawyers have employed creative solutions to have such objections removed or struck at an early stage.

Current approaches

In addition to a costly summary judgment motion³ there are multiple strategies that a lawyer can utilize to vacate a Notice of Objection – which our firm has reviewed critically in blogs and other publications.⁴

In the case of Re Lawrence⁵ the son and daughter of their deceased father filed an objection to the step-mother’s request for a certificate of appointment of estate trustee with a will. They argued, inter alia, that the deceased was delusional.⁶ The lawyer for the named estate trustee brought a motion for directions under Rule 75.06.⁷ The court vacated the notice of objection and held that mere observations and opinions rooted in suspicion are insufficient and that evidence must be adduced.⁸

In the unreported decision of Toth Estate Case,⁹ the applicant filed a notice of objection to the application for a certificate of appointment. Counsel for the executors brought a motion under Rule 75.03(2) and sought an order from the court to remove the notice of objection based on a lack of evidence provided by the objector.¹⁰ After reviewing the evidence that had been adduced, Justice Whitaker agreed that the objector’s notice of objection should not stand and granted relief in favour of the executors.¹¹

A New Wrinkle: Motion to Strike

In Dessia and Wolde v. Demisie, a notice of objection was filed by the testator’s former common-law spouse (the “Respondent”). The applicants Girma Debela Dessia (“Dessisa”) and Fissiha Wolde (“Wolde), who were named as co-estate trustees in the testator’s will, brought an application to strike out the Respondent’s notice of objection under Rule 25.11, which provides:

25.11  The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.¹²

Interestingly, the motion was brought on the basis of Rule 25.11(b). As Justice Pattillo has held, “Rule 25.11(b) provides that the court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is scandalous, frivolous or vexatious. A pleading that contains a complete absence of material facts is considered frivolous and vexatious. Bare allegations, particularly of intentional or malicious conduct are scandalous” [emphasis added.]¹³

The deceased and the Respondent had resided in a common-law relationship for more than 25 years and had purchased a home together with title being taken by the couple as joint tenants.  In 2016, the deceased made a will in which he appointed the Respondent as the executor and left the residue of his estate to the Respondent and his sister, who resides in Ethiopia.

In January of 2017, the deceased separated from the Respondent after she allegedly made a threat on his life. A month later on February 24, 2017, the deceased made a new will in which he appointed the applicants as co-executors of his estate and left his entire estate to Dessisa, with a gift over to Wolde in the event that Dessisa predeceased him. On that same day, the deceased named both the applicants as his attorneys for property and also named Dessisa as his attorney for personal care. The deceased’s personal lawyer was present for the signing of the new will and the power of attorney documents.

The separation was resolved in comprehensive minutes of settlement (the “Minutes”), which dealt with spousal support, the property held in joint tenancy, and the deceased’s pensions and life insurance policy. The Minutes required the Respondent to release her right to make any trust claims against the deceased as well as her entitlement to receive any proceeds from the deceased’s estate. The Minutes were signed by the Respondent and the deceased provided instructions to Dessisa to sign on his behalf as his power of attorney.

In response to the applicant’s applications for a certificate of appointment of estate trustee, the Respondent filed a notice of objection in which she alleged that the deceased never had capacity to sign the new will, the power of attorney, or the minutes of settlement. In response, the applicants brought a motion to strike claiming that the notice of objection was frivolous and vexatious.

The court found in favour of the applicants and granted their motion to strike finding that the Respondent “failed to adduce any evidence which would put the capacity of the deceased in question”. With respect to the evidence that was adduced by the Respondent, the court held that such evidence consisted of only “bald allegations” and that mere suspicion does provide legal ground for her notice of objection to stand on. The court also found that the claims made in the notice of objection were completed barred by virtue of the Minutes.

In our view, this case underscores the need for counsel to reflect on the strategy to be employed to attack a meritless objection, specifically in respect of the type and quality of evidence that may be required. However, it should be noted that unlike the approach taken in Re Lawrence this case has yet to undergo appellate review (and indeed may not be appealed). Accordingly, caution should be exercised in pursuing a motion to strike a notice of objection on the basis of Rule 25.11.