Superior Court awards testator’s son $125,000 as more successful party in two estate matters

The testator’s October 2018 wills significantly departed from prior testamentary plans by reducing her husband’s entitlement, effectively disinheriting her daughter, and leaving the estate residue, valued at around $7 million, entirely to her son. 

Shapiro v. Shapiro, 2026 ONSC 3834, revolved around the costs arising from two related proceedings. The first concerned the son’s application for a certificate of appointment of estate trustee. 

The testator’s husband and daughter opposed the application. They asserted undue influence and testamentary fraud in the latest version of the testator’s wills in October 2018. 

The objectors argued that the testator’s son and his wife misled the testator and gave false information about the financial circumstances of the testator’s husband and about the daughter’s husband, which made the testator change her testamentary intentions. 

The Superior Court granted the testator’s son a certificate of appointment of estate trustee, rejected the objections, and upheld the 2018 wills’ validity. The court acknowledged that the testator may have held some mistaken beliefs. 

However, the court found no proof of undue influence on a balance of probabilities or evidence that the testator’s son or his wife had fabricated or imposed the testator’s concerns, which had some factual basis. 

Based on the evidence, the court found that the testator: 

• made deliberate and independent decisions 
• was strong-willed and well-advised, not dependent or isolated 
• had concerns about protecting the family legacy from her daughter’s husband 
• thought about reducing or eliminating her daughter’s inheritance well before 2018 
• altered the wills due to an evolving intention, primarily motivated by her own views regarding family dynamics 

The second proceeding involved the claim of the testator’s husband under Ontario’s Succession Law Reform Act, 1990, for dependant support and a proprietary interest in the matrimonial condominium. 

Considering testamentary autonomy, legal and moral obligations, the husband’s financial security, and the need to preserve most of the estate for the son, the court ordered the transfer of the condominium title to the husband, apart from the $250,000 bequest. 

The court determined that the testator’s husband: 

• was a dependant spouse, as the testator had provided him with housing and essential support 
• had a strong moral and legal claim to the condominium, which was the matrimonial home and which the testator had promised to place in joint title 
• lacked a sufficient provision in the 2018 wills 

Cost awards

Except for the higher rates charged by Toronto counsel, the Ontario Superior Court of Justice found the hourly rates, the time spent, and the allocation of work in the parties’ bills of costs reasonable in the circumstances. 

The court fixed partial indemnity costs given the proceedings’ complexity and the rates relevant to Ottawa. 

The court considered a blended costs award appropriate. First, the court found the testator’s son entitled to his costs of the will challenge as the successful party. The court awarded him $200,000. 

Second, the court found the testator’s husband entitled to recover a portion of his costs of the dependency claim. The court awarded him $125,000. These cost awards included fees and disbursements. 

The court directed the estate to pay the testator’s husband $50,000, representing a 40 percent contribution to his costs. After the set-off, the court ordered the husband to pay the son the net amount of $125,000. 

The court concluded that this outcome reflected the parties’ relative success, proportionality, and fairness in accordance with the principles pertinent to estate litigation costs.