Excellence in Trusts and Estates Law: Otis v. Otis


In May of this year, several members of our firm had the pleasure of attending the Ontario Bar Association Trusts and Estates Law Section’s year-end dinner, at which the Award of Excellence in Trusts and Estates Law was presented to the Honourable Maurice Cullity, Q.C.  I can think of no more worthy candidate for the Award, which honours those who have made exceptional contributions in the area of wills, estates, and trusts.

Otis v. Otis

The Honourable Justice Cullity is known for a number of celebrated decisions in our field, including his decision in Otis v. Otis.

In this case, the deceased died leaving three children and a will dated 1977 in which he divided his estate equally between them.  One of the children, Hailey, applied for a certificate of appointment with a will that was executed in 1994, two days before the death of the deceased.  One of the other children, Rollin, and a person claiming to be a common law spouse of the deceased objected to the 1994 will.  Rollin brought a motion for directions but Hailey did not appear and the Court granted a certificate of appointment to Rollin with respect to the 1977 will.  Hailey then brought forward another will, this one from 1980, in which the deceased left her the whole estate.  Rollin argued that the 1980 and 1994 wills were forgeries.

All of this lead to a trial of the issue of which of the three wills should prevail.  Hailey did not appear at the trial and did not provide her lawyer with instructions about how to proceed.  The trial proceeded without her.  This put the Court in the difficult position of having to decide which of the three wills was valid, with nobody there to argue in favour of the 1980 or 1994 wills.

On the basis of handwriting evidence, Justice Cullity held that the 1977 signature was that of the testator, but that the 1980 and 1994 signatures were likely forged.  He ultimately pronounced in favour of the 1977 will.

One of the features of this case that makes it noteworthy is the way in which Justice Cullity described the role of the court in exercising probate jurisdiction, noting that probate courts have an inquisitorial role that is different than the role of courts in ordinary civil matters:

The role of the court is not simply to adjudicate upon a dispute between parties. The judgment of the court granting probate does not bind only the parties to the proceeding. Unless, and until, it is set aside, it operates in rem and can affect the rights of other persons. For this reason and  – and perhaps more fundamentally – because the court is understood to have, in a sense, a responsibility to the testator, it would not grant probate in solemn form on an unopposed application without evidence…

This is but one of many remarkable decisions in the area of estates and trusts law that make the Honourable Maurice Cullity, Q.C. a prime candidate for this OBA award.  He has rendered noteworthy decisions on the law of will challenges, support of dependants, the role of summary judgment in wills matters, and a number of other areas that touch upon our practice.  His writings and other contributions as a lawyer, an academic, and a member of the judiciary are frequently cited and will undoubtedly continue to impact the practice of law for the foreseeable future.