As the year draws to a close, now is an apt time to reflect on how the law has evolved in 2023. Two hundred and fifty-eight wills and estates cases were reported on CanLII between January 1 and December 21, 2023, and of that number, 106 cases were determined in Ontario alone. From this body of case law, the following eight cases stand out in terms of how they shaped the law this year.
Palichuk v. Palichuk, 2023 ONCA 116
The Court of Appeal used this case to remind us that it is inappropriate to seek advice or directions from the court regarding the will of a living person under the Rules of Civil Procedure. The appellant in this case sought directions from the lower court regarding the validity of her mother’s will, in addition to other legal instruments, after she was disinherited by her mother. Public policy reasons for not allowing a will challenge to proceed prior to the testator’s death are also explored in this case. The firm’s original podcast on Palichuk can be heard here.
Dinally v. Dinally, 2023 ONSC 6178
In this case, Justice Myers explained the nature of evidence needed to overcome the minimal evidentiary threshold in Ontario, which must be met in order to proceed with a will challenge:
Evidence needs to be relevant. It needs to make more or less likely an inference that a fact exists or existed. Subjective speculations whose relevancy hinge one [sic] one’s predisposition to find the alleged influencer evil, are of no assistance to the task at hand. That is why these motions should be easy and the lengthy historical litanies of events, that can only be relevant when accompanied by purely speculative assumptions, are of no help.
Click here to read our original blog post about Dinally.
White v. White, 2023 ONSC 3740
Another decision from Justice Myers, this case confirms that it is inadvisable to seek disclosure before asserting a cause of action with respect to an estate or commencing a will challenge. The applicant sought disclosure of the file of the deceased’s lawyer in reliance on section 9 of the Estates Act, which permits the court to order “any person to produce … any paper or writing being or purporting to be testamentary”. Justice Myers refused to grant the order, noting his fear of “creating a pond that is ripe for fishing expeditions” that any beneficiary (or potential beneficiary) could use to gain access to the deceased’s confidential materials. This case is also interesting because of the questions that Justice Myers raises regarding procedure when a future will challenge is possible, including whetheran application to validate a non-compliant testamentary instrument under section 21.1 of the Succession Law Reform Act ought to be subject to the minimal evidentiary threshold test. Our original blog post about White can befound here.
Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315
This is another decision touching on section 21.1 of the Succession Law Reform Act, where the court refused to use the dispensing power to validate codicils to the testator’s will. Justice Chang explained that if a testamentary intention is not clearly set out in the instrument or cannot be inferred from admissible extrinsic evidence, the dispensing power cannot be used. Because the codicils in this case did not refer to revocation or renewal of the testator’s will, which had been revoked by marriage, the requisite intent was not present and the will could not be saved using section 21.1. Instead, Justice Chang found that the will was revived by the handwritten codicils under section 19(1)(b) of the Act. We previously blogged about Justice Chang’s decision here, and also discussed it on the firm podcast here.
Switching our focus now to beneficiary designations, this case confirms that a general revocation clause in a will is ineffective to revoke a beneficiary designation made by an instrument, unless the designation is expressly referred toin the revocation clause. While the general revocation clause in this case expressly revoked the deceased’s existing “testamentary dispositions of every nature and kind whatsoever”, the Court of Appeal confirmed that it did not extend to beneficiary designations. In order to comply with the Succession Law Reform Act, a general revocation clause in a will must expressly reference beneficiary designations, either generally or specifically, rather than reference a category of instruments which includes beneficiary designations. Our blog touched on this case a number of times this year – see Nick Esterbauer’s post here and Geoffrey Sculthorpe’s post here.
Gorgi v. Ihnatowych, 2023 ONSC 1803
Justice Sanfilippo’s decision shines a light on the circumstances under which a will may be rectified in Ontario, permitting words to be both deleted from and added to the testator’s will in order to correct an unintended error. Because of the way that the testator’slawyer had drafted the clause disposing of the residue of the estate, a child and grandchild who the testator did not intend to benefit were to receive part of the residue. The court permitted the will to be rectified since the evidence established that the testator’s instructions had not been carried out, reflecting an ongoing trend of utilizing tools when possible to give effect to a testator’s wishes. Our original blog post summarizing Gorgi can be read hereand a podcast can be accessed here.
This case explores when dependant support will be payable for a child the deceased demonstrated a “settled intention” to treat as his or her own, confirming that the circumstances under which a “settled intention” is demonstrated must be determined on a case-by-case basis. The lower court in this case found that the deceased was not required to pay dependant support for a child who he believed was his prior to his death, but who was not actually biologically related to the deceased. In upholding this decision, the Court of Appeal held that the law does not preclude consideration of knowledge of parentage as a factor when determining whether the deceased had a settled intention to treat a child as his or her own. Our original blog post about D.L. v. E.C. can be read here.
Jackson v. Rosenberg, 2023 ONSC 4403
The last case on our list this year speaks to what could go wrong when property is transferred for estate planning while the testator is still alive. Rather than leave his hometo a beneficiary in his will, the applicant in this casetransferred the property into joint tenancy with his chosen beneficiary in order to avoid paying estate administration taxes. After the transfer was completed, the beneficiary began to make plans to sell the property and have the applicant move in with her family, prompting the applicant to seek a declaration that the beneficiary held title to the home in trust for him. While Justice Charney found that a presumption of resulting trust applied to the gratuitous transfer, it was partially rebutted since the applicant intended the beneficiary to hold the property for her own benefit upon his death. Under these circumstances, the applicant could not revoke the right of survivorship which had been gifted immediately when the transfer was executed. However, the plaintiff was able to sever the joint tenancy and convert it into a tenancy in common. As a result, until the applicant’s death the beneficiary could only hold her interest in the property on a resulting trust for the applicant. Click here to see our original blog post on this case; a podcast can also be accessed here.
Thank you for reading, particularly during the holidays! As 2023 comes to an end, we also wish you a Happy New Year!