Can partial summary judgment be granted in a contested will?

Ontario, Canada


The following excerpt is from Smith Estate v. Rotstein, 2011 ONCA 491 (CanLII):

The appellant concedes that it is undisputed that partial summary judgment is available in contentious estate matters. However, counsel for the appellant submits that the law in respect of summary judgment in contested wills should be permitted to develop on an incremental basis "in a manner that preserves long-standing and well-accepted policies and procedures". As an example of the motion judge's failure to proceed on an incremental basis, he cites the treatment of Slater v. Slater, [2004] O.J. No. 4054, 12 E.T.R. (3d) 246 (S.C.J.), at para. 46 of his reasons: Where an objection to a will involves multiple "claims" regarding its invalidity, I see no reason why partial summary judgment could not be granted dismissing some of the claims provided the result was consistent with the [page170] purpose of Rule 20 in removing a discrete issue from the list of those to be tried, thereby shortening the trial. Whether or not to grant partial summary judgment would require an exercise of judicial discretion in the particular circumstances of a case. For example, in Slater v. Slater, supra, the court granted summary judgment in respect of some, but not all, issues set out in an order for directions regarding the validity of a will -- summary judgment was granted dismissing claims that the will was executed under undue influence or without testamentary capacity, but not granted in respect of a claim of lack of due execution of the will.

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