Lessons from Neuberger Part 1: Does an interested person have an automatic right to proof in solemn form?

March 15, 2016 Doreen So Continuing Legal Education, Estate & Trust, Executors and Trustees, General Interest, In the News, Litigation, News & Events, Trustees, Uncategorized, Wills Tags: , , , , , , , , 0 Comments

The Ontario Court of Appeal released not one, but two, decisions last week in relation to a Will Challenge proceeding.  In addition to Spence v. BMO Trust Company, 2016 ONCA 196 (which is well covered by the media, and by our blog here), the Court of Appeal also released the decision of Neuberger v. York, 2016 ONCA 191.

Blog photoThe case of Neuberger v. York involves the Estate of Chaim Neuberger.  The late Chaim Neuberger was a holocaust survivor, and Toronto real estate mogul, whose success equated to a fortune of over $100 million on his death according to the National Post.  Chaim was predeceased by his wife, Sarah Neuberger, and he was survived by his daughters, Edie Neuberger, and Myra York, and the adult children of Edie and Myra.  Edie and Myra were the named Estate Trustees of Chaim’s 2010 Wills, as well as his prior 2004 Wills.

Chaim passed away on September 25, 2012, and Edie brought an application to challenge the validity of Chaim’s 2010 Wills on December 19, 2013.  In January, 2014, Edie’s son, Adam, also brought a motion to challenge the validity of Chaim’s 2010 Wills, amongst other relief.  Edie’s Will Challenge was dismissed at first instance, along with Adam’s Will Challenge.

On appeal, Adam argued that an “interested person” is entitled, as of right, to have a Will proved in solemn form, prior to a grant of probate.  Adam argued that this right stems from Rule 75.01 of the Rules of Civil Procedure, which reads as follows:

FORMAL PROOF OF TESTAMENTARY INSTRUMENT

75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.

On this point, the unanimous Court of Appeal disagreed.  The Hon. Justice Gillese considered a plain reading of Rule 75.01, in conjunction with Rule 75.06, and determined that an “interested person” may request proof in solemn form but cannot require it (at paragraph 84).   Moreover, “the court has a discretion whether to order that a testamentary instrument be proved, as well as a discretion over the manner in which the instrument is proved” (at paragraph 87).  The correct approach to Rule 75.06 requires an applicant, or moving party, to “adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded” (at paragraph 89).

Thanks for reading! Stay tuned this week for more lessons from Neuberger.

Doreen So

 

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