The Respondent applied to determine the validity of an immediate Enduring Power of Attorney and Personal Directive. The Applicants sought Summary Judgment to dismiss that Application. Marjory Godsman completed an Enduring Power of Attorney and Personal Directive in 2020, naming the Respondent as her Attorney and Agent. She also completed a second set of the same documents in 2021, naming the Applicants as joint Attorneys and Agents. The Respondent argued that Ms. Godsman lacked capacity to execute the documents in 2021.

The Court considered Rules 7.2 and 7.3 and the relevant case law on the topic of Summary Judgment. In particular, Justice Hartigan considered the proper approach to Summary Dispositions, including that it must be fair to resolve the dispute on the available record, and there must be no genuine issue requiring Trial. Justice Hartigan found that the evidentiary record available was substantial, including Affidavits and filed cross-examination transcripts.

The Respondent suggested that the evidence of one affiant was subject to issues of credibility that required viva voce evidence, to allow the Court to more effectively assess its veracity. The Court held that this was not a compelling argument, as conflicting Affidavit evidence does not preclude a Summary Decision. Further, the particular evidence at issue was not necessary to determine the ultimate issue.

The Court similarly rejected an argument that new witnesses could be tendered at an oral hearing if allowed, which could provide further evidence. Justice Hartigan found that the record before the Court was sufficient to determine the issues and additional witnesses were not required.

Ultimately, Hartigan J. found that the 2021 documents were valid, and summarily dismissed the validity Application.