Author: Sayuri Kagami
We’ve blogged quite a bit recently on the various technologies and breakthroughs that are being made in Alzheimer’s, including the use of Artificial Intelligence in detecting early signs of the disease and research on new treatment methods. As anyone who has worked with affected individuals and their caregivers can attest, Alzheimer’s and dementia are extremely challenging and will increasingly affect more families. It’s no surprise then that researchers and governments are taking steps to address Alzheimer’s disease and dementia.
Last month, the Canadian Federal government announced its comprehensive dementia strategy (for news coverage, see this CBC article). The release of the strategy comes on the heels of the passage of the National Strategy for Alzheimer’s Disease and Other Dementias Act in 2017 which allowed the government to take steps to begin developing a national dementia strategy.
The strategy aims to broaden awareness of dementia and advance the following “national objectives”:
- Prevent dementia by advancing research and expanding awareness of and support in adopting lifestyle measures that can increase the prevention of Alzheimer’s disease and dementia;
- Advance therapies and find a cure by supporting and implementing research; and
- Improve the quality of life of people living with dementia and caregivers by eliminating stigma, promoting early diagnosis and care, and better supporting caregivers.
As part of the national strategy, the Federal budget (released on March 19, 2019) allocated $50 million over five years towards implementing the dementia strategy. The release of the national strategy and funding to address this issue has been welcome news to organizations in Canada dedicated to tackling Alzheimer’s and dementia.
Hopefully, the release of this strategy will promote the continued advancement of breakthroughs in Alzheimer’s and dementia research.
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A recent decision out of the Ontario Superior Court of Justice serves an important reminder of the difficulties that can arise in interpreting and implementing a will when the life circumstances of a testator change after preparing the will.
In Stuart v Stuart, 2019 ONSC 4328, the Court dealt with the interpretation of a will prepared by a testator in 1999. At the time of preparing the will, the testator was married and lived in a property he and his wife owned as tenants-in-common. Although they remained married and did not indicate any intention to separate, the testator eventually required placement in a long-term care facility.
The testator’s wife subsequently decided to sell the property she and her husband had lived in together and purchased a life lease housing interest (see here a guide from Ontario’s Ministry of Municipal Affairs and Housing for more on these arrangements). The wife purchased the life lease as tenants-in-common with the testator, but he never resided there as he remained in long-term care.
The testator eventually died and sometime after his death, the wife sold the life lease interest and deposited half the proceeds of sale into the testator’s estate. After the wife’s death, Directions were sought by the Estate Trustee with respect to the interpretation of the following provision of the will:
3(h) To allow my wife, during her lifetime, the use and enjoyment of whatever interest I may own in any residence we may occupy at the time of my death. My Trustee may, at any time, with the consent of my wife, sell such interest with the proceeds of such sale assist in the purchase of another residence for the use and enjoyment of my wife as aforesaid and so on from time to time, always retaining the proportionate share in such residence for my estate. If my wife so prefers, my Trustee may sell such interest in the residence and hold the net proceeds of sale in trust for my wife as hereinafter set out. If, during any period, the whole or any part of the proceeds of any such sale be not so used, they shall be invested by my Trustee and my wife shall, during such period, be entitled to the net income therefrom. My Trustee in determining the proceeds of sale of any such interest in the residence with a view to providing another interest in the residence for my wife as aforesaid, shall not deduct the amount of any debts secured thereon.
Because the husband had still been alive at the time that the home he shared with his wife was sold, the questions was whether paragraph 3(h) of the will remained operative as the husband never resided in the subsequent property that he and his wife owned at his time of death.
The Court applied the armchair rule to “assume the same knowledge [the testator] had to the nature and extent of his assets, the makeup of his family, and his relationship to its members.” The Court found that the testator and his wife remained married and were separated only due to the testator’s health. Had he not been in long-term care, he would have resided with the wife. The Court then found that the testator’s primary intention, from his will, was that his wife was properly cared for after his death such that he “clearly wanted his wife to be able to remain living in whatever home she and he, but for his medical condition, would have been living in at the time of his death.” The Court therefore found that the terms of the will allowed the wife to reside in the subsequently purchased home, despite the testator never having lived there.
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Many people are generally aware that the preparation of a Will is a significant event which requires that certain formalities be complied with. In Ontario, the formal requirements for executing a valid Will are set out at sections 3 to 7 of the Succession Law Reform Act (the “SLRA”).
Formal Requirements of a (Non-Holograph) Will
The formal requirements set out in the SLRA for wills, aside from holograph wills and those of active service members, are:
- The will must be in writing;
- The will is signed at the end by either the testator OR by some other person in the presence of the testator and by the testator’s direction;
- The will is signed OR acknowledged by the testator in the presence of at least two attesting witnesses who are present at the same time; and
- At least two attesting witnesses sign/subscribe the will in the presence of the testator.
For most English speaking Ontarians, the formal requirements for executing a valid will pose little issue. They can read and review the document, sign it at the end in the presence of two people, and then have those two persons sign immediately after them. However, for some individuals, the formal requirements of a Will may pose difficulties. Today’s blog examines what types of issues may arise and how to address them.
For individuals who are unable to read or write, some may not be able to sign their name in the conventional sense. However, common law courts have accepted a wide variety of “marks” which are intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most testators will be able to execute a will without difficulty.
Those who Have Physical Difficulty Writing
For individuals who may experience physical difficulties in executing a Will, several solutions exist. As the Courts accept a variety of “marks,” it may be possible for those who find it difficult to fully sign their name to nonetheless adequately sign the will for the purpose of complying with the SLRA.
Alternatively, individuals may direct another person to sign the will for them, provided that the testator remains in their presence at that time. In certain jurisdictions, the person signing on behalf of the testator may also act as the attesting witness.
Formal Validity and Substantive Requirement of Knowledge and Approval of Will
While the provisions of the SLRA allow for some flexibility in how a testator “signs” a will, it is important to follow precautions in order to ensure that the substantial requirement of knowledge and approval are not later questioned. In situations where an individual is unable to read English or to sign documents, individuals may raise concerns about whether the testator knew of and approved the contents of the will purportedly being signed by them.
In such circumstances, where a will challenge is commenced, it is important to have evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.
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The use of artificial intelligence (“AI”) is saturating all facets of life and death. While we might often think of AI as some future product of a technologically advanced society, it is already in common use. Think of Apple’s Siri and Google Translate; both require AI in order to function.
Earlier this year, my colleague, Garrett Horrocks, blogged on a study showing the promising use of AI in detecting Alzheimer’s. This month, a recent study out from the University of Nottingham explores the use of AI in predicting premature death of middle-aged persons. The study shows promising results.
AI and Bias
While many reports are optimistic in how such predictive models can improve preventative health care, others are more cautious. A recent article from Wired raises the issue of potential bias in such AI models. The article delves into the concerns of scholars that AI might adopt and even promote bias as a result of implicit biases that already exist. Take, for example, the Amazon AI recruitment tool which was designed to review resumes of job applicants and pick the top candidates. Amazon abandoned the project after experiencing several issues, including the program explicitly discriminating against women. The program did so by penalizing candidates who graduated from women’s colleges or had the word “women’s” in their resume (e.g. “women’s chess club”).
The Wired article also raises concerns about existing biases in health care services, such as how patients of different ethnics groups are treated differently for pain with studies in the US finding that racial and ethnic minorities tend to be undertreated for pain, compared to non-Hispanic white persons. While the Wired article raises concerns about the potential biases that can be adopted and/or promoted by AI, the article also notes the potential for AI to reduce bias by focusing on objective factors affecting a person’s health.
AI and the Law
Many say that the law and lawyers are resistant to change (who still relies on faxes?). Despite any such resistance, the legal system, like everyone else, is being dragged into the world of AI, whether ready or not. Just as AI is revolutionizing health care, legal products implementing AI are being developed, with some estimating that over 100,000 jobs in the legal sector will be automated by 2036.
More importantly, however, is the ongoing need for the law to adapt to the changing world of AI. The implementation of AI in our everyday life has significant ramifications from the products recommended to us while online shopping to whether or not we might receive proper preventative health care. With the potential for ethical abuses and unintended consequences (such as discrimination), it will be interesting to see how (or if) laws and regulations develop to address these new advances in AI.
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While we may not pause to give it much thought, there is a whole industry surrounding death. From purchasing burial plots and obtaining memorial/funeral services to having a loved one’s remains attended to and ensuring their final resting place is properly cared for, families and estate trustees will interact with various goods and services providers following a loved one’s death.
Often times, these goods and services providers will supply invaluable support at what can be an extremely perplexing and difficult time. Many businesses will guide families in making final arrangements and also help with the process of navigating various necessary but unfamiliar processes such as applying for the CPP death benefit. Like with any consumer goods and services, however, people may have complaints or disagreements with such service providers.
For any consumer of such services who does experience problems, the Bereavement Authority of Ontario (the “BAO”) is a regulatory body which exists to provide consumers protections and assistance with complaints. As set out on its website, the BAO administers portions of the Funeral, Burial and Cremation Services Act, 2002 (the “FBCSA”), regulates licensees under that act, and “ensures that consumers are dealing with qualified and licensed professionals who provide a variety of affordable options.”
For consumers, the BOA provides information regarding consumer rights and services in the bereavement sector, along with a mechanism to submit complaints with respect to services which have been obtained. Once complaints are submitted, the BOA can assist the parties in attempting to resolve the matter, impose certain sanctions on the service provider, or refer the matter to a discipline committee. For those who suffer financial loss as a result of a licensee’s failure to comply with their obligations under the FBCSA, the BOA also administers a compensation fund. Along with these types of consumer protections, the Bereavement Authority of Ontario undertakes a wide array of activities in regulating the bereavement sector such as granting or revoking licenses and initiating studies of alternative technologies and services relevant to the bereavement sector.
While one would hope that the last issue faced by a grieving family is complaints surrounding a bereavement sector service provider, it is helpful to know that a specialized authority exists in Ontario to assist with such complaints, if necessary.
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Over the past few months, since the release of Re Milne, 2018 ONSC 4174, estate practitioners have been in turmoil over the decision which found that wills are trusts that must have certainty of object, subject-matter, and intention. As a result of the uproar caused by the decision, the Divisional Court expedited a hearing of the appeal of Re Milne. Four and half months later, the estates bar and individuals with multiple wills can now rest easy with the Divisional Court’s decision in Re Milne, 2019 ONSC 579.
The Lower Court Decision
At the lower court, Justice Dunphy found a primary will to be invalid where an allocation clause in the will provided the estate trustees with the discretion to determine which estate assets fell under the secondary will or the primary will based on whether probate of such assets would be required. Justice Dunphy found that such allocation clauses resulted in there being no certainty of subject-matter with respect to the primary will as assets could be allocated between the two wills after death (the secondary will, on the other hand, was worded in such a way that it was found to validly capture all of the testator’s assets).
In particular, Justice Dunphy took issue with the conferral of discretion upon the estate trustees to determine which assets, if any, would fall under the primary will. The allocation clause at issue specifically provided for the exclusion of assets from the primary estate “for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for a transfer or realization thereof.” Justice Dunphy found that this clause granted the estate trustees the power to determine which assets, if any, were subject to the will based on the “subsequent, subjective determinations of the Estate Trustees as to what is desirable.” Justice Dunphy further found that the assets that fall under a particular will must be objectively ascertainable at the time of death, and not subject to the subsequent discretion of the estate trustees.
The Issues on Appeal
The estate trustees appealed the lower court decision on the following issues:
- Did the Application Judge err in holding that a will is a trust?
- Did the Application Judge err in holding that the “three certainties” determine the validity of a will?
- Did the Application Judge exceed the Court’s inquisitorial jurisdiction? (the Court agreed that the Application Judge exceeded his jurisdiction, but found that such a conclusion was unnecessary to decide the appeal).
A Will is Not a Trust
As many will recall, the lower court decision began with the proposition that “a will is a form of trust. In order to be valid, a will must create a valid trust and must satisfy the formal requirements of the Succession Law Reform Act, R.S.O. 1990, c. S.26.” No precedent was provided for this statement and it was this finding which ultimately led to the finding that the allocation clause contained in the primary will resulted in a lack of certainty of subject matter and therefore the invalidity of the primary will.
The Divisional Court found that a will is not a trust on the following basis:
- the definition of a “will” in the Succession Law Reform Act does not state that a Will is a trust;
- a will can contain a trust, but is not required to;
- during the administration of an estate, no separate beneficial interest exists – the property comprising the residue of the estate is not held in trust for the beneficiaries; and
- historically, courts of chancery were responsible for oversight of the administration of estates and trusts, such that the law with respect to executors of estates and trustees of trusts share similarities, however, the roles remain distinct, despite conflation that now exists between the two roles.
Finally, the Divisional Court found that even if section 2(1) of the Estate Administration Act, which vests the property of a deceased person in their personal representative “as trustee for the persons by law beneficially entitled thereto”, resulted in the creation of a trust, such a trust would be a statutory trust and therefore not subject to the “three certainties.”
The Primary Will Contains Certainty of Subject Matter
Although the Divisional Court found that wills are not trusts and that even if they are trusts, they are not subject to the “three certainties”, the Court went on to consider whether the use of an allocation clause in multiple wills would result in a lack of certainty of subject matter.
The Court held, at paragraph 49, that:
The property in the Primary Wills can be clearly identified because there is an objective basis to ascertain it; namely whether a grant of authority by a court of competent jurisdiction is required for transfer or realization of the property. As a result, the Executors can allocate all the deceased person’s property between the Primary and Secondary Wills on an objective basis.
Thus the Court found that there was no lack of certainty of subject matter as the allocation clause provides an objective criteria for determining which will an asset might fall under, being the objective determination as to whether probate is required to handle the asset.
Furthermore, earlier in the decision (at paragraph 24), the Court confirmed that the discretionary nature of an allocation clause does not mean that it can be exercised arbitrarily and that executors must exercise such discretionary powers in accordance with their fiduciary obligations.
Although not explicitly stated, it appears from these findings that the Divisional Court found that allocation clauses are valid discretionary powers which may be conferred on estate trustees. Such a finding may provide further comfort to those concerned, not only about the issue of whether a will is a trust, but the separate issue of whether a testator may confer such a discretionary power on estate trustees. As it stands, the Divisional Court’s decision supports the validity of allocation clauses.
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As recognition and acceptance of transgender individuals has increased over the years, so too (slowly) have the legal options available to those individuals to ensure that their gender identity is officially recognized. Such societal changes have included the availability of having one’s gender identity recognized on ID documents, including birth certificates. Volunteer and community programs, such as PBSC’s Trans ID Clinic in Toronto, also exist to help transgender individuals obtain such vital documentation.
However, while the various provinces may be making strides towards recognizing the gender identity of individuals during their lifetime, a recent news article highlights how provincial governments have failed to do so on a person’s death. As set out in the article, the gender provided on a death certificate is determined based on observable physical characteristics at the time of death or autopsy. Thus, for those who haven’t undergone gender confirmation surgery, their death certificate is likely to misstate the person’s gender identity.
For transgender individuals who are unable to obtain gender confirmation surgery or do not wish to undergo such procedures, this creates a grave concern that their identity will be erased on their death. For loved ones and the community who are left behind, the lack of proper identification of the deceased can also be painful.
The inability to obtain a death certificate which properly reflects the gender identity of transgender individuals may also create legal difficulties once the person passes away. Death certificates are often required for various aspects of administering a deceased individual’s estate, from obtaining probate to having life insurance policies paid out. Where the death certificate contains discrepancies from other documentation, it may be more difficult to have a death certificate accepted as proof of an individual’s death. For example, imagine an individual who has a life insurance policy in which they are identified as male. The death certificate identifies that person as female. In attempting to have the life insurance policy paid out, the life insurance company may be unwilling to do so due to the question of whether the individual listed on the death certificate is, in fact, the same as the insured individual.
As a result of difficulties such as this, the article presents advice for the best way of avoiding such legal headaches: make a will and provide instructions to your executor as to your wishes. For those still on the fence about the utility of making a will, it’s important to know that when you die, the executor of your estate is the one ultimately in control of how you are buried and memorialized. Hence in order to ensure that one’s wishes are complied with, it is best to draft a will and appoint an executor (and alternative executor) who will respect one’s identity.
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Last week, Stuart Clark blogged on what happens when unexpected DNA results lead to a person finding out that they aren’t, in fact, biologically related to a parent who dies intestate or leave a class gift to “my children” in their Will. Today, I’ll be looking at recent case in BC reported on by CBC with a similar problem. In a case now moving through the BC courts, the Deceased, who had immigrated to Canada from Sweden in the 1950s, named his only child as the sole beneficiary of his estate and of an alter ego trust. Suspicious of the son’s paternity claims, relatives of the Deceased sought and obtained a paternity test that proved that the purported son was actually not biologically related to the Deceased.
Because the “son” was named in the Deceased’s Will (and in prior Wills), there is no need for either the son or the Deceased’s relatives to seek declarations regarding the son’s parentage. Instead, the relatives of the Deceased are now fighting the son’s entitlement to any interest in the Estate on the basis that the son and his mother committed fraud and deceit against the Deceased for over 50 years in order to induce the Deceased into naming the son as the sole beneficiary of his estate.
Although he moved to Canada in the 1950s, the Deceased continued to return home to Sweden during his lifetime and had a romantic relationship with the son’s mother in Sweden. According to the Swedish relatives, the Deceased wrote to the mother in 1964 and informed her of his success in Vancouver, following which she wrote to him and informed him that her son, born in 1961, was also his son. The Deceased began including the mother and son in his testamentary documents in 1966.
While the Swedish relatives claim that the son and mother perpetrated a longstanding fraud on the Deceased so as to benefit the son, the son claims that he was only informed (by the Deceased) that the Deceased was his father in 2002, that he requested paternity tests on two occasions and that the Deceased declined to do so, knowing that there was a chance that the son was not biologically related to him.
It is early days yet in the litigation of this matter with the parties having just received judgment on an (unsuccessful) motion seeking to have the Swedish relatives post security for costs. If this matter doesn’t settle, it will be interesting to see whether a Court will find that a 50 year fraud was committed on the Deceased such that the bequests provided to the son are invalid.
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The recent decision of Re Milne, 2018 ONSC 4174, has caused a lot of discussion among estate planners and litigators. As a recap, in that decision, Justice Dunphy of the Superior Court found that multiple Wills were invalid where so-called “basket clauses” in the Wills provided the Estate Trustees with the discretion to determine which estate assets fell under which Will. The Court found the Wills to be invalid on the basis that Wills are a form of trust and therefore must meet the requisite three certainties of a valid trust (see our blog on the decision here). The decision is now under appeal and many are eagerly awaiting the outcome.
In the interim, estate planners and litigators should be aware of the recent decision of Re Panda, 2018 ONSC 6734, which directly addresses and declines to follow Re Milne.
Like in Re Milne, probate was sought for a Primary Will where a Secondary Will was executed which contained a different, but substantively similar, basket clause allowing the Estate Trustee of the Will to essentially determine which assets fell under the Primary Will and which assets fell under the Secondary Will. The application for probate came before Justice Dunphy who refused to grant probate. A motion for directions was then heard by Justice Penny who carefully analyzed the decision of Re Milne before granting probate.
The Issues in Re Panda
Justice Penny analyzed one procedural issue and two substantive issues, being:
- whether, on an unopposed application for a certificate of appointment as estate trustee, it is appropriate to inquire into substantive questions of construction of the will or whether the inquiry is limited to “formal” validity of the will for purposes of probate [the procedural issue];
- whether the validity of a will depends upon the testamentary instrument satisfying the “three certainties” which govern the test for the valid creation of a trust; and
- whether, apart from the questions of the validity of the will itself, a testator can confer on his or her personal representatives the ability to decide those assets in respect of which they will seek probate and those in respect of which they will not.
Probate vs. Construction
Unlike Justice Dunphy in Re Milne, Justice Penny found that at the stage of determining whether to grant or deny probate, a Court must determine only whether the document presented is a Last Will and Testament. The formal requirements under the SLRA must be met and it must be determined whether the document is testamentary in nature (i.e. disclosing an intention to make a disposition of the testator’s assets on death). Beyond that, Justice Penny found that broader questions of interpretation, including the validity of the conferral of authority to decide under which Will property will fall, should be addressed separately as matters of construction, not on probate applications.
A Will is Not a Trust
Justice Penny also disagreed that a Will was a form of trust such that a Will requires certainty of intention, object, and subject-matter. As stated by Justice Penny, “A will is a unique instrument. A will shares some of the attributes of a contract and some of the attributes of a trust but it is neither; a will is its own, unique creature of law.”
Validity of Estate Trustees’ Authority to Determine Which Assets Fall Under Which Will
With respect to the final issue, Justice Penny found that such a question involves the issue of the construction of a particular instruction to or power conferred in the Wills to the estate trustees. Justice Penny therefore found that it would be inappropriate to make any determination as to the scope and validity of the basket clause found in the Wills as such issues were not before him on the Application for Probate; however, in obiter, Justice Penny went on to note that it was not clear how the basket clauses in issue were “any more extreme or ‘uncertain’ than other, well-established discretionary choices frequently conferred on and exercised by estate trustees.”
Until the determination of the appeal of Re Milne is in, the decision in Re Panda may provide some comfort to practitioners worried about the implication of Re Milne.
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When does the limitation period start running for a challenge to the validity of a Will? A recent decision at the Superior Court of Justice dealt with this very question and found that the limitation period may continue to run even after two years from the date of death of the testator.
In the decision of Shannon v Hrabovsky, 2018 ONSC 6593, the testator prepared a will in 2006 which he provided to his daughter following its execution. However, the testator subsequently executed a will in 2007 (the “2007 Will”) which essentially disinherited his daughter to the benefit of his son. The daughter was not provided with a copy of this will, but the daughter was aware that the testator attended a lawyer’s office in 2007 and signed something. The testator died on November 15, 2014 and the daughter was provided a copy of the 2007 Will in January 2015 when her brother and uncle applied for a Certificate of Appointment of Estate Trustee under the 2007 Will.
The daughter commenced a challenge to the validity of the Will on December 23, 2016. This claim was commenced more than two years after the testator’s date of death, but less than two years from when the daughter received a copy of the 2007 Will in January 2015. As a preliminary issue, Justice Wilton-Siegel determined the issue of whether the limitation period for bringing a challenge to the validity of the 2007 Will had expired.
In particular, Justice Wilton-Siegal examined the issue of whether the discoverability principle applies in the case of will challenges. Under the Limitations Act, 2002, SO 2002, c 24, sched B, a claim generally may not be commenced after the second anniversary of the day on which the claim is discovered. Section 5(1) of that act sets out that:
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
Justice Wilton-Siegel referred to the decision in Leibel v Leibel, 2014 ONSC 4516 where the Court found that as a will speaks from the date of death, the limitation period begins running from the date of death. In Shannon v Hrabovsky, it appears that the respondents attempted to argue that the discoverability principle did not apply and that a will challenge can only be brought within two years of the date of death. Justice Wilton-Siegel found, however, that the discoverability principle continues to apply to will challenges and that Leibel v Leibel was not to be taken as meaning that such a principle did not apply.
In the circumstances of the case, Justice Wilton-Siegel found that the will challenge was not statute-barred as the daughter had not discovered the existence of the 2007 Will until she was provided with a copy in January 2015.
The circumstances of each case are unique and while some might be concerned that this case opens up potential claims against the validity of a Will long after a testator has passed away, it is important to remember that the Court will examine the discoverability principle with respect to whether a reasonable person ought to have discovered the claim.
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