Pleadings Matter for Limitation Periods

January 21, 2020 Doreen So Continuing Legal Education, Estate & Trust, Estate Litigation, Executors and Trustees, Litigation, Uncategorized, Wills Tags: , , , 0 Comments

Today’s blog is a continuation of yesterday’s discussion regarding the limitations analysis in Piekiut v. Romoli, 2019 ONSC 11902020 ONCA 26.  No limitation period was found to apply where an estate trustee was simply seeking a determination and declaration as to whether certain codicils were valid or not valid.

The testators in this case died in 2008.  They had 3 children, Helen, Victor, and Krystyna.  A meeting took place in 2008 between all 3 children and a lawyer to discuss the administration of the Estate.  During this meeting, Krystyna revealed, for the first time, the existence of codicils and declarations of gift that provide her with an interest in certain properties.  Helen refused to acknowledge the validity of these new documents.

In 2015, Helen brings a court application.  Her application was later amended, on the consent of parties, in 2018 to reflect that Helen was only seeking a declaration in respect of the validity of the codicils.  Thus in 2019, Justice Dietrich’s decision was made in the context of Krystyna’s motion for summary judgment to dismiss Helen’s application on the basis that it was statute barred and Helen’s cross-motion for summary judgment on her application.  Justice Dietrich found that, since Helen did not ask the court to determine the ultimate beneficiaries of the properties that were subject to the Codicil or to vest such properties in any particular beneficiary or beneficiaries, her application was not barred by the Limitations Act, 2002.

The Court of Appeal agreed with Justice Dietrich.  The panel was also of the view that this case is distinguishable from Leibel v. Leibel2014 ONSC 4516 and Birtzu v. McCron, 2017 ONSC 1420 because of the consequential relief that was pleaded in those cases.  Since the Court of Appeal decision did not go into the details of the relief sought in Birtzu (unlike its description of Leibel), it is helpful to understand the breadth of the Statement of Claim in Birtzu, which sought the following:

  • an Order setting aside the Will;
  • an Order setting aside the Deceased’s Powers of Attorney;
  • an accounting of the entire Estate, as well as all financial transactions undertaken by the Deceased, or on his behalf, or on behalf of his Estate, from the date that the Deceased’s matrimonial home was sold in 2003 to the date of trial;
  • Orders for the production and release of financial and medical information;
  • an Order reversing all transactions undertaken by the Defendant, either directly or indirectly, without authority or in breach of her authority, or in breach of her fiduciary duties to the Deceased and to his beneficiaries, including the Plaintiffs;
  • an Order tracing the property of the Deceased into the property owned by the Defendant, including her home;
  • Orders for injunctive relief, including the issuance of a certificate of pending litigation;
  • a Declaration that all property held in the name of the Defendant, or part thereof, is held by her for the benefit of the Plaintiffs;
  • damages against the Defendant in the amount of at least $400,000.00, for conversion of property, breach of statutory duty, and/or breach of fiduciary duty;
  • pre- and post- judgment interest; and
  • costs fixed on a substantial indemnity basis, plus H.S.T.

Thanks for reading!

Doreen So

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