In this estate litigation, the deceased’s daughter brought a claim against her brother, the deceased’s son, and against the lawyer who drafted the deceased’s most recent Will, claiming undue influence and a lack of testamentary capacity. In addition, the daughter claimed an interest in the deceased’s land pursuant to an agreement. The deceased’s son and the lawyer applied for Summary Judgment and the dismissal of the Plaintiff’s entire Claim. In the alternative, they applied to have the matter set down for determination at a Summary Trial.

Jerke J. reviewed the relevant law and found that a defendant seeking Summary Dismissal must prove that there is no genuine issue of material fact requiring Trial. If the defendant does so, the onus shifts to the plaintiff to refute or counter the defendant’s evidence by establishing a real chance of success.

Jerke J. found that the deceased’s son had established that there was no genuine issue for Trial concerning the claimed agreement respecting the daughter’s interest in land. The deceased’s daughter had not successfully refuted this evidence and, accordingly, that claim was dismissed. The deceased’s daughter had also sought an accounting. However, Jerke J. determined that the administrator pendente lite previously appointed by the Court was fully competent and authorized to address this concern.

Finally, the Court addressed the validity of the Will. Jerke J. found that the deceased’s daughter had presented sufficient evidence to refute the defendants’ contention that there was no genuine issue for Trial and established that the claim had a real chance of success. Accordingly, Jerke J. turned to the question of whether a Summary Trial would be appropriate. With reference to the nine factors set forth in Bonsma v Tesco Corporation, 2011 ABQB 620 and Duff v Oshust 2005 ABQB 117, Jerke J. found that a full Trial was warranted. The Court noted that “courts should not be hesitant to decide cases by use of a summary trial process, and litigants should not be reluctant to participate”. However, the case at bar depended on the success of the deceased’s daughter’s cross-examination of her brother’s witnesses. Consequently, Jerke J. held that justice required a full Trial to determine the validity of the Will.

Jerke J. also included an appendix discussing the process by which parties may apply for Summary Trials set forth in Rules 7.5 - 7.8. The Court noted that the Rules expressly provide the Respondent a right to wait until 5 days before the date scheduled for the Summary Trial to give Notice of Objection. Jerke J. noted that the process the Parties followed in the case before the Court, whereby a ruling as to the propriety of Summary Trial would be obtained in advance of the scheduled date, helped to eliminate uncertainty arising from a strict reliance on the Rules. Jerke J. recommended that parties follow a bifurcated process to first determine the propriety of a Summary Trial in advance of the date for the Summary Trial Hearing.