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Case Brief: Koster v. Koster, 2018 ONSC 2321

George Koster died in 2014 at the age of 94. George's nieces and nephews brought an application challenging the validity of George's will on the grounds that George's mistress-turned-wife, Elizabeth, had unduly influence George. Elizabeth brought a motion for summary judgment to dismiss that application. Justice Nightingale would not grant Elizabeth's motion for summary judgment because there was contradictory evidence that merited a trial.

The Facts

George's first wife Tess died in 2006. They had no children together. Following Tess's death, George spent time Elizabeth, who'd been his mistress during his marriage to Tess and with whom he fathered one son, George Hare ("GH"). In 2009, George created a will that would have left 10/11 of his very large estate to his neices and nephews, and 1/11 of his estate to Elizabeth.

George and Elizabeth married suddenly on February 7, 2011. Shortly after, George created a new will disinheriting his nieces and nephews, giving everything to Elizabeth. George eventually created a secondary will leaving his nieces and newphews $20,000 each from the estate. Elizabeth would receive a life interest, which would then pass to GH.

Contradictory Evidence

  • Elizabeth claimed that George disinherited his nieces and nephews because they didn't keep in touch with him, and skipped his 90th birthday party. The nieces & nephews claimed that Elizabeth deliberately cloistered George and prevented them from contacting him.

  • Elizabeth claimed not to have had anything to do with George creating a new will after their marriage. However, George gave his lawyer typed instructions, despite having very weak typing skills

  • There was mixed evidence about whether George was mentally fit or showing early signs of dementia.

Outcome

Justice Nightingale did not grant Elizabeth's motion for summary judgment. Circumstantial evidence can be used to challenge a will (Trotter), and based on the indicators listed in Gironda v Gironda, it's possible Elizabeth had undue influence over George. Given the material and conflicted evidence raised, a trial was deemed necessary to sort everything out.

https://www.canlii.org/en/on/onsc/doc/2018/2018onsc2321/2018onsc2321.html