



COURT OF APPEAL FOR ONTARIO

CITATION: Moses v. Moses, 2021 ONCA 662

DATE: 20210928

DOCKET: C69124

Strathy C.J.O., Lauwers and
    Sossin JJ.A.

BETWEEN

Reuben
    Moses

Applicant (Appellant)

and

Rosy
    Moses, personally and in her capacity as the Estate Trustee of the primary and
    secondary estates of Aby Reuben Moses, deceased, and Rachel Moses

Respondents (Respondents in Appeal)

Gregory M. Sidlofsky, for the appellant

Catherine Francis, for the respondent,
    Rachel Moses

Ranjan Das, for the respondent, Rosy
    Moses, personally and in her capacity as the Estate Trustee of the primary and
    secondary estates of Aby Reuben Moses

Heard: September 3, 2021 by video conference

On appeal from the order of Justice Peter
    J. Cavanagh of the Superior Court of Justice, dated January 25, 2021, with
    reasons reported at 2021 ONSC 587, 64 E.T.R. (4th) 246.

REASONS FOR DECISION

[1]

The application judge dismissed the appellants application for a
    declaration of invalidity of a will made by his late father in 2019, three
    months before his death (the 2019 Will). He claimed that the 2019 Will was
    invalid as a result of undue influence by his mother, the respondent Rosy Moses,
    and by his sister, the respondent Rachel Moses.

[2]

In other proceedings, the appellant claims an interest in his fathers
    property, based in part on proprietary estoppel.

[3]

The appellant advances two principal submissions. First, he submits that
    the application judge erred in his interpretation of s. 23 of the
Estates Act
, which gives a party standing under a will
    when making a claim to property affected by the will. He submits that his
    civil action against the estate is such a claim. He contends that in rejecting
    his submission, the application judge incorrectly relied on the decision of the
    Saskatchewan Court of Appeal in
Adams Estate v. Wilson
,
    2020 SKCA 38, 57 E.T.R. (4th) 1.

[4]

The appellants second submission is that the application judge erred by
    putting an onus on him to establish the invalidity of the 1996 Will, an issue
    that would be determined at a later date, if necessary.

[5]

The application judge found that the appellant had no standing to bring
    the application to declare the will invalid, either under r. 75.06(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 or under
    s. 23 of the
Estates Act
, R.S.O. 1990, c. E.21.
    He was not a beneficiary under the 2019 Will and, even if the 2019 Will were to
    be set aside on the ground of undue influence, he would not be affected by the
    result, because there was an earlier will, made in 1996 (the 1996 Will),
    under which the appellant would receive no share on the death of his father 
    the entire estate would go to his mother.

[6]

In coming to these conclusions, the application judge made findings of
    fact concerning the provenance of the 1996 Will and the circumstances of its execution.
    Those findings were based on evidence tendered by the respondents concerning
    the discovery of the 1996 Will and its preparation and execution. Rachel Moses
    swore an affidavit concerning her discovery of the 1996 Will, which had been in
    the possession of her mother. Although the solicitor who prepared that will was
    deceased, his former legal assistant swore an affidavit identifying her
    signature as one of the two witnesses to the will and the signature of the
    solicitor as the other witness. The assistant deposed that it was the
    solicitors practice that two witnesses were always present when a client
    executed a will.

[7]

The application judge noted that the appellant did not cross-examine
    either Rachel Moses or the lawyers assistant. Nor did he provide affidavit
    evidence that called into question any of the evidence the respondents had
    adduced. The application judge found that the appellant presented no evidence
    to support an inference that the 1996 Will was unauthentic or invalid. He found
    that the appellant failed to satisfy the low threshold of presenting
    sufficient evidence to support an inference that he appears to have a financial
    interest in [his fathers] estate. He therefore found that the appellant did
    not have standing under r. 75.06(1).

[8]

The application judge also found that the appellants civil action based
    on proprietary estoppel did not give him standing to challenge the 2019 Will
    pursuant to s. 23 of the
Estates Act
, where he
    would otherwise have no standing to do so. The outcome of the civil action did
    not depend on the validity of the 2019 Will.

[9]

We see no error in the application judges reasons. In the
    circumstances, there was an onus on the appellant to adduce
some evidence

to
    call into question the considerable body of evidence adduced by the respondent
    to establish the validity of the 1996 Will. The conclusion that he failed to do
    so is entitled to deference.

[10]

Nor
    are we persuaded that the application judge erred in the interpretation or
    application of s. 23 of the
Estates Act
. The
    jurisdiction under that provision is discretionary and the appellant has
    identified no error by the application judge in the exercise of his discretion.

[11]

In
    the circumstances, we do not find it necessary to decide whether the decision
    of the Saskatchewan Court of Appeal in
Adams Estate

reflects the law of Ontario.

[12]

At
    the end of the day, as the application judge found, the appellant may pursue
    his claims in his civil action against the estate, his mother, and the
    companies in which his father had interests.

[13]

The
    appeal is dismissed. We invited counsel to attempt to resolve the issue of
    costs. As we have not heard from them, we award costs to the respondent, Rachel
    Moses, in the amount of $15,000 and to the respondent, Rosy Moses, in the
    amount of $5,000, both amounts inclusive of disbursements and all applicable
    taxes.

G.R. Strathy C.J.O.

P. Lauwers J.A.

L. Sossin J.A.


