As demonstrated by the diverse collection of cases discussed on the firm’s blog over the last 12 months, 2024 has been another eventful year for estate litigators in Canada. More than 320 Canadian wills and estates cases were reported on CanLII since January 1, 2024, a tally which is up by more than 20% from the number of such cases reported on the database last year. After reflecting on case law released in 2024, we have picked eight Ontario cases that we think will have a lasting impact on the practice of law for wills and estates practitioners and estate litigators.
Ingram v. Kulynch Estate, 2024 ONCA 678
With this case, the Ontario Court of Appeal made it clear that the two-year limitation period in section 38 of the Trustee Act applies to trust claims against estates, and that the 10-year limitation period established by section 4 of the Real Property Limitations Act does not apply to such claims, even if they involve real property. The court’s judgment in this case is also noteworthy for its explanation of the process to follow to determine which limitation period applies if more than one appears to be applicable. We’ve addressed this case on the blog a number of times this year, including here, here and here, and also discussed it on the firm podcast: see Podcast 703 – The Evolving Context Behind Applicable Limitation Periods.
The Estate of William Robert Waters v. Gillian Henry et al, 2024 ONSC 4190
This high-profile case involved a former business professor who, prior to his death, gave over $30 million to his girlfriend over a 12-year period, including $2.85 million that belonged to his wife. Justice Callaghan held that the girlfriend was not required to repay the estate for the bulk of the funds thatshe received from the deceased as gifts, but that she was required to repay the wife for the funds taken from her. Concepts explored by the court in this case include the doctrine of equitable fraud, unjust enrichment, and duties owed by an attorney for property to the person who they assist. The determination of which limitation periods applied to the disputed transfers was also a prominent issue as the transfers took place over many years and stopped more than two years before the estate commenced its claim. The blog discussed this case twice in 2024 – read here to learn more about the wife’s claim, and to learn more about the court’s analysis of the limitations issues, read here.
Shannon v. Hrabovsky, 2024 ONCA 120
In this case, the Court of Appeal confirmed that the limitation period applicable to a will challenge may not start running once a person with an interest in the deceased’s estate learns of that person’s death or of the existence of the deceased’s will. Rather, in light of the discoverability principle in section 5 of the Limitations Act, 2002, the limitation clock should not start running until that party receives an actual copy of the will, so that they can understand the nature of any loss that they have suffered. Practically speaking, this means that if a person is denied access to the deceased’s will, they are not required to start a will challenge based on mere suspicions or speculation. For more information about this case, our original blog post can be found here.
Jackson v. Rosenberg, 2024 ONCA 875
Last week, we published a blog post about the Court of Appeal’s ground-breaking decision in Jackson v. Rosenberg. To refresh your memory, in this case the court held that an inter vivos gift which is limited to a right of survivorship in land and which is given by registering title in joint tenancy may end if the donor severs the joint tenancy by converting it into a tenancy in common, even though such gifts are technically irrevocable. Under these circumstances, it appears that the donee of the gift will simply hold their interest in the property in trust for the donor until the donor’s death. This case is particularly noteworthy because the lower court’s decision, included in our Top Wills & Estates Cases of 2023, had held that a right of survivorship could not be revoked by converting a joint tenancy into a tenancy in common. In light of the fact that it is now clear that a donor who gives only a right of survivorship may end that right, we may see an uptick in estate planning involving transferring real property into joint tenancy, particularly since this strategy also enables donors to avoid probate fees.
James Estate (Re), 2024 ONCA 623
Our list of the top wills and estates cases of 2024 also touches on estate administration. In keeping with the courts’ inherent or equitable jurisdiction to remove a trustee, the Court of Appeal held in James Estate that the courts in Ontario also have the inherent discretion to deny an inappropriate application to appoint an estate trustee, even if that application is unopposed, and that section 29 of the Estates Act cannot be used to compel the court to grant a certificate of appointment of estate trustee. The applicant in this case was a disbarred lawyer who had not been appointed as estate trustee in the deceased’s will; his application to be appointed as estate trustee was refused by both the Superior Court of Justice and the Court of Appeal. This case is also important because it confirms that the court may consider factors other than the welfare of estate beneficiaries when determining whether to grant an application to appoint an estate trustee, given the “breadth of discretion afforded” to the court. Our original blog post on this case can be read here.
Devonport v. Devonport, 2024 ONSC 6764
This case focuses on the anti-lapse provision found in section 31 of the Succession Law Reform Act, and is noteworthy because it confirms that the armchair rule gives the court the ability to look outside of a will to determine whether the deceased had a contrary intent that would prevent the application of section 31. In other words, the court is not limited to considering only the words used in a will when determining whether or not a testamentary gift lapses; Justice Rees explained that the will must be considered in its entirety, including the language used, and the circumstances surrounding the creation of the will. Applying these principles, the court held that a testamentary gift left to the testator’s son, who had predeceased the testator, was subject to the anti-lapse provision because there was no indication that the testator intended to oust the application of section 31 of the SLRA. This is an important decision because there has been some controversy in recent years as to whether the court may apply the armchair rule and consider surrounding circumstances to determine the testator’s intent when the testator is predeceased by a beneficiary named in their will.
Ihnatowych Estate v. Ihnatowych, 2024 ONCA 142
In this case, the Court of Appeal confirmed that the Supreme Court of Canada did not create a new test for rectification of a will in Canada (Attorney General) v. Fairmont Hotels Inc.,2016 SCC 56. The appellant had argued that there was a new test which required the court to consider whether a presumption of validity had been rebutted with “clear evidence” of a mistake before a will could be rectified. In dismissing the appeal, the Court of Appeal confirmed that the test for rectification of a will has not changed and that an error or omission in a will may be rectified as long as it was made by the will drafter, and it will defeat the testator’s intentions if it is not cured. Applying this test, the lower court’s decision to rectify the deceased’s will was upheld so that the residue of the estate was distributed in keeping with the deceased’s instructions. Our original blog post about the Court of Appeal’s decision can be found here; the lower court’s decision, Gorgi v. Ihnatowych, 2023 ONSC 1803, was also included in our list of the Top Wills & Estates Cases of 2023.
Lastly, in this case the Court of Appeal weighed in on testamentary capacity and undue influence. The discussion of undue influence is particularly noteworthy, as the court confirmed that there is no set list of factors which must be considered when evaluating a claim of undue influence. Rather, undue influence is to be assessed on a case-by-case basis, in light of “the nature of the relationship between the alleged influencer and the deceased”.
Thank you for reading our blog in 2024. We appreciate our readership, and hope that you enjoyed learning about new updates in the realm of wills and estates this past year. We are looking forward to sharing the latest legal developments with you again in 2025 – until then, we hope that you and your family have a wonderful holiday season!