/ Case Law

Case Brief: Holding up the administration of an estate

In Maloney v. Maloney, 2019 ONSC 5632, the Superior Court considered a motion related to an estate administration held up by a notice of objection.

The Facts

Daniel Maloney ("Mr. Maloney") prepared his will on January 13, 2011. The will divided his estate equally between his children (Shelley, Thomas, and Matthew), with the exception of an oak china cabinet that was specifically bequeathed to Shelley.

Mr. Maloney died in November 2018. The executors and trustees filed an Application for Certificate of Estate Trustee with a Will in May 2019.

Shelley filed a notice of objection on the grounds of undue influence, unfitness of the estate trustees, and various conflicts of interest. She took the position that the 2011 will did not reflect her father's wishes.

Shelley's filed objection resulted in holding up the estate administration, i.e. property could not be sold and financial accounts could not be accessed.


Justice V. Christie noted that even if Shelley succeeded in having the will set aside, the rules of intestacy would result in a virtually identical division of the estate. The only difference would be that Shelley would not get the oak cabinet specifically bequeathed to her.

That said, there was also no reason to disregard the will. Mr. Maloney contacted his lawyer of 20 years to prepare the will. His lawyer did not believe him to be unduly influenced, and everything was executed and witnessed properly.

It's up to the propounder of the will to prove its validity (See Vout v. Hay, [1955] 2 SCR 876. That burden was satisfied here.

It's then up to the party challenging the will to establish that it was made under suspicious circumstances (see Martin v. Martin, 2018 ONSC 1840). Justice V. Christie noted that Shelley had no evidence to support her assertions:

"The fact that Ms. Maloney does not agree with the terms of the will or believes that her father would have done things differently is not proof in that regard (para 15)"

Her objections to who was acting as estate trustee had no basis in law. The existence of conflict within a family does not exclude someone from acting as estate trustee.

Discontented relatives cannot hold up an estate administration with unsupported assertions. Accordingly, Justice V. Christie granted the motion by the moving parties and removed Shelley's notice of objection.

The court ordered that Shelley not interfere with the sale of two properties of the estate, but did not forbid her from accessing the properties.

The Bottom Line

You can't have a validly executed will set aside with bald assertions.

Patrick Hartford

Patrick Hartford

Patrick is the Founder of NoticeConnect.

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