A question that is often asked by plaintiffs is, “when does the clock start ticking to bring my claim?”
In Ontario, there are with certain exceptions, two limitation periods for plaintiffs to bring their claim and the rule of discoverability. First, pursuant to section 4 of the Limitations Act, 2002, no claim shall be brought after two years from the day on which the claim was discovered.
The second limitation period, which is known as the ultimate limitation period, as per s. 15(1) bars claims from being made after the 15th anniversary of the day on which the act or omission took place.
In New Brunswick there are statutory limitations for bringing claims along with the doctrine of discoverability. First, pursuant to section 5(1)(a) of the New Brunswick Limitation of Actions Act (“LAA”), no claim shall be brought after two years from the day on which the claim was discovered. Second, according to section 5(1)(b), no claim shall be brought after fifteen years from the day on which the act or omission on which the claim is based occurred. Section 5(2) further states that a claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a) that the injury, loss, or damage had occurred, (b) that the injury, loss, or damage was caused by or contributed to by an act or omission, and (c) that the act or omission was that of the defendant.
In the decision of Province of New Brunswick v. Grant Thornton, 2020 NBCA 18, the Court of Appeal of New Brunswick established the test for when a limitation period is triggered. They focused on the view that s. 5(1)(a) does not begin to tick until the plaintiff has discovered their claim. In their view, “the two-year limitation period begins to run the day after the plaintiff knows or ought reasonably to have known facts that confer a legally enforceable right to a remedy” (Para 7).
A year later, the Supreme Court of Canada came to a different conclusion in Grant Thornton LLP v. New Brunswick, 2021 SCC 31. Here, the Court enforced a new standard for when a plaintiff has the requisite degree of knowledge to discover a claim under section 5(2) of the LAA, which in turn affects the two-year limitation period under s. 5(1)(a). Going forward the standard to be enforced is whether “the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn” (Para 42).
Although Grant Thornton arose from legislation in New Brunswick, it is plausible the Court’s decision will have implications for how Ontario’s Limitations Act, 2002 and the discoverability doctrine will be interpreted going forward.
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In Lipiec v. Lipiec, 2021 ONSC 6292 (CanLII) the court ordered on September 22, 2021, that the original will be produced by the deceased’s second wife to the son of the deceased.
In Szabo Estate v. Adelson, 2007 CanLII 4588 (ON SC) the former solicitor for an estate was allowed to assert a solicitor’s lien over the original of a deceased’s will for payment of legal fees.
In Polten & Associates v Resch, 2015 ONSC 3930 (CanLII) the court ruled on the claim for a solicitor’s lien after the original will had been released, and found against the claim by the lawyer as follows:
“It is the position of Mr. Polten that his law firm has a solicitor’s lien over the Estate assets, “including those assets which appear to have been deliberately excluded from Resch’s calculation of the undistributed Estate proceeds.” And further that, the Polten law firm “did not withhold the Will through the exertion of a solicitor’s lien” and it should now be paid its outstanding fees “for reasons including the lien it could have then claimed, and has now in fact claimed as part of the process leading to this motion….” .
Mr. Justice J.B. Shaughnessy ruled, “I reject Mr. Polten’s argument that he has a solicitor’s lien and that this constitutes a financial interest in the estate.”
In summary, it appears that a lawyer can assert a solicitor’s lien on an original will for unpaid legal fees and can do so by retaining possession of the original will until the matter is dealt with by the court or the claim is otherwise resolved.
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For those animal lovers amongst us, the recent decision of the Supreme Court of British Columbia in Henderson v Myler may have caught your eye.
Setting out a plan in your estate for beloved pets is not uncommon and a reasonable step to take for your furry friend. At times, in the midst of the enthusiasm to ensure pets are looked after, one can get carried away, and the courts may step in to impose a modicum of reasonableness.
In the present case, the testatrix, Eleena Murray (“Mrs. Murray”), died in late 2017, leaving a will dated January, 2013 (the “2013 Will”), providing a few named relatives small specific bequests, and the residue in its entirety, totalling approximately $1.8 million, to the BC Society for the Prevention of Cruelty to Animals (the “SPCA”).
The dispute arose from an unsigned note from 2017 (the “Note”), found in Mrs. Murray’s safety deposit box. The Note, if valid, indicated that she intended to increase the amount of some of the specific bequests, delete others, and reduce the gift to the SPCA to the specific amount of $100,000.00. However, following Mrs. Murray’s death, her home was sold, and the value of the estate was found to be significantly larger than initially thought. If the estate was distributed under the terms of the Note, there would be $1.4 million passing under a partial intestacy.
In her decision, Madam Justice MacNaughton stated: “Ms. Murray had no immediate family. It is entirely possible that she chose to benefit a charity that reflected her love of animals as opposed to extended family members … The question is what Ms. Murray subjectively intended, not what an average person would choose to do with their estate.”
While the size of the gift to the SPCA in the 2013 Will was unusually generous, the Court emphasized that a divergence from “the average testamentary gift” was not a determinative factor. The Court looked to Mrs. Murray’s personality and lifestyle, and found that, while the gift to the SPCA in the 2013 Will was unusual in a normative sense, it was consistent with her character and actions in life.
Further, considering the inconsistencies in the handwriting of the Note, and the lack of a residuary clause, the Court found that the Note was not effective as a codicil or alteration to the 2013 Will.
In Ontario, handwritten wills and alterations are governed by the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), and more specifically for the latter, section 18. The requirements can seem relatively straightforward – the document must be signed by the testator and be entirely in their handwriting. However, as witnesses are not required, the circumstances around the execution can often be uncertain, opening the door to potential litigation.
If you are planning on writing a holographic will, and have doubts or questions, it may be wise to consult with a lawyer.
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Suzana Popovic-Montag & Raphael Leitz
Section 9 of the Estates Act provides a broad discretion for the Court to order production of a testamentary instrument. On September 22, 2021, in Lipiec v. Lipiec, 2021 ONSC 6292, the court ordered that the original will be produced by the deceased’s second wife to the son of the deceased, even if the will was not going to be probated and even if there was no action commenced.
But, can the former solicitor for an estate assert a solicitor’s lien for payment of legal fees over the original of a deceased’s will, or is the will exempt from lien?
In Szabo Estate v. Adelson, 2007 CanLII 4588 (ON SC) the application dealt with this very narrow issue and Justice D. Brown, as he then was, decided:
“I think it is appropriate to exercise my discretion under section 9(1) of the Estates Act to require Mr. Kligerman to deliver up the will to Ms. Hegedus so that the administration of the estate may proceed.
Mr. Kligerman need not do so until Ms. Hegedus consents to a charge against the estate of Gizella Szabo in the amount of Mr. Kligerman’s account dated January 8, 2004, together with accrued interest.
Until Ms. Hegedus gives such consent, Mr. Kligerman may maintain his lien over the original will.”
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On September 22, 2021, in Lipiec v. Lipiec, 2021 ONSC 6292, the court ordered that the original will of the deceased be produced – as indicated in the edited reasons that follow below:
This is a motion for the disclosure of the complete will of the deceased. The Plaintiff in this action is the son of the deceased by his first marriage. The Defendant is the deceased’s second wife.
Under the deceased’s will, the son was to have received a legacy of $20,000.00. However, he may dispute both the will and the legacy that he has received, as he believes he was promised more by the deceased. He seeks production of the will.
Counsel for the Defendant argues that the will should not be produced as it is not going to be probated. There are no assets in the estate because everything passed by way of joint right of survivorship.
Section 9 of the Estates Act provides a broad discretion for the Court to order production of a testamentary instrument. This discretion is not dependent on a lawsuit being pending before the Court.
In this case, the Plaintiff is mentioned in the will. The Defendant’s argument that the document should not be produced because it does not matter is without merit. The Plaintiff is entitled to satisfy himself as to what the will contains, and he is clearly a party with a potential interest in the estate. It may also be open to the Plaintiff to argue that the will should be set aside, depending on the contents of the will.
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A decision this week out of the Ontario Court of Appeal emphasizes the need for standing in order to be allowed to proceed with a will challenge.
In Moses v. Moses, 2021 ONCA 662 (CanLII), a son challenged the validity of his father’s 2019 Will. The son was not provided for in the 2019 Will, and the son challenged its validity based on undue influence. However, the father had a prior Will from 1996, which also did not provide for the son. The application judge dismissed the will challenge on the basis that the son lacked standing. Even if the 2019 Will was invalid, the son would not take under the estate due to the 1996 Will.”
The son argued that the question of the validity of the 1996 Will “would be determined at a later date, if necessary”. The application judge and the Court of Appeal disagreed. The Court of Appeal stated that “there was an onus on the [son] to adduce some evidence to call into question the considerable body of evidence adduced by the respondent to establish the validity of the 1996 Will.”
The son also argued that he had a claim against the estate for proprietary estoppel, and that because of this, s. 23 of the Estates Act gave him standing to challenge the Wills. Section 23 provides:
Citation of persons interested
23 Where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed, all persons having or pretending to have an interest in the property affected by the will may, subject to this Act and to the rules of court, be summoned to see the proceeding and may be permitted to become parties, subject to such rules and to the discretion of the court.
The Court of Appeal rejected this argument, accepting the application judge’s finding that the outcome of the son’s claim against the estate did not in any way depend on the validity of the 2019 Will, and thus s. 23 did not give the son standing to challenge the 2019 Will. Further, s. 23 is discretionary, and the Court of Appeal found no error in the application judge’s exercise of discretion.
When considering a will challenge, one must consider standing. Where will I be if I am successful in setting aside the will? If I can be successful on the will challenge but still not in the chips, I may not be allowed to proceed.
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According to recent news reports, Prince Andrew has allegedly been “actively evading” service of legal documents in relation to a proceeding commenced against him in the United States. Specifically, he has allegedly stopped spending time in public areas, has moved from place to place in order to make it difficult to determine where he is currently staying, and has instructed guards at his places of residence to refuse to accept service or to allow process servers to meet with the Prince personally. As a result, a hearing has been scheduled to address the issue of whether service upon Andrew by other means is effective in light of his apparent evasion of personal service.
In estates matters, we sometimes see disgruntled beneficiaries or estranged family members attempting to evade service. In Ontario, our Rules of Civil Procedure offer several tools for addressing situations in which respondents take active steps to evade service. Rule 16.04 permits a party to request an order for substituted service where “it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules”, and, “where necessary in the interest of justice, [the court] may dispense with service” altogether. Alternatively, where unsuccessful steps have already been taken to effect service, Rule 16.08 permits a court to make an order validating service if “the document came to the notice of the person to be served; or the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.” In either scenario, the materials filed with the court should outline the steps taken to attempt and/or evade service and explain why proper service is impractical (such as a detailed affidavit from the process server).
While the Rules of Civil Procedure still require personal service with notice of some originating processes and other documents, we have seen some relaxation of this standard during the COVID-19 pandemic, when personal service has been unsafe and/or impractical.
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The Court of Appeal in Dass v. Kay, 2021 ONCA 565, was recently asked to reconsider the dismissal of a claim that was found to be statute barred pursuant to the Limitations Act, 2002. The appellant in this case is the principal of two corporations, and the respondent was the principal of a mortgage brokerage.
In 2015, the mortgage brokerage was asked by the appellant’s brother to secure financing to purchase a commercial property on Drew Road in Toronto. The Drew Road mortgage application listed the appellant as a guarantor and provided that one of his companies would be the tenant. The Drew Road mortgage application ultimately was denied by Roynat, an affiliate of Scotiabank, although the real issue was that the appellant was never advised of the Drew Road mortgage application, and that the appellant had never agreed to be a guarantor or tenant. The appellant only discovered the Drew Road mortgage application when he was trying to secure financing from Roynat for his own purposes. The Drew Road mortgage application was brought to the applicant’s attention by Roynat on July 24, 2015, and he denied any knowledge or involvement with the application to Roynat then. The appellant’s mortgage application was also ultimately denied by Roynat and he was advised by Roynat that the denial had nothing to do with the appellant’s association with the Drew Road mortgage. On August 21, 2015, the appellant sought advice from his lawyer on the basis that he believed that his mortgage application was rejected because of the improper Drew Road mortgage application, and that the mortgage broker and his brother have harmed his reputation with Roynat. His lawyer’s advice in 2015 was that the appellant had no evidence to prove that the mortgage broker’s actions resulted in the denial of the appellant’s mortgage, and it was the lawyer’s view that an action against the mortgage broker was inadvisable because it was unlikely to succeed. Meanwhile, the appellant was also attempting to borrow from Scotiabank, and he was denied by Scotiabank as well. The appellant was eventually able to secure financing but at much higher interest rates than those offered by Roynat and Scotiabank.
In 2018, when the appellant’s financing was due for renewal, the appellant approached Roynat and Scotiabank again. This time, the appellant was told that he had been “blacklisted” due to Drew Road mortgage application. Thereafter, the appellant issued a statement of claim on April 27, 2018 which sought damages for the reputational and commercial harm suffered by the appellant as a result of the mortgage broker’s submission of the Drew Road mortgage application.
The motions judge found that the appellant knew on July 24, 2015 of the unauthorized application, that he knew on July 27, 2015 of the mortgage broker’s involvement, and that he knew by August 21, 2015 that he suffered financial loss as a result of the unauthorized application because of the appellant’s email to his lawyer. Of note, the Court of Appeal’s analysis of section 5(1)(a)(iv) of the Limitation Act, 2002 is found at paras. 22-28 of the decision.
First, the determination of whether a proceeding is an appropriate means to remedy an injury, loss, or damage depends on the factual and statutory context.
Second, the Court has recognized two non-exclusive factors that can operate to delay matters: (i) when the plaintiff relied on the defendant’s superior knowledge and expertise, particularly where the defendant has taken steps to ameliorate the plaintiff’s loss, and (ii) where there is an alternative dispute resolution process for an adequate remedy that has not yet been completed.
Third, the “appropriate means” factor has nothing to do with the viability of a claim, or any other practical and tactical reasons for waiting.
While the appellant contented that he was not advised of being “blacklisted” until 2018, this does not fall under the two non-exclusive factors set out above. The limitation period does not commence only when one is able to assess whether litigation would be an attractive option (para. 46). Moreover, the appellant’s reliance on the legal advice that he received in 2015 is irrelevant to the limitations analysis (para. 54).
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In the recent decision of BMO Trust Company v. Cosgrove, 2021 ONSC 5681, a holograph Codicil was the subject of dispute. The handwritten document includes the following language:
“End of page 3 of the Codicil for the Last Will and Testament of me, Nola Louise Bogie
Signed, Published and Declared by the said Testatrix, Nola Louise Bogie, at the City of Toronto, in the Municipality of Toronto, in the Province of Ontario,
As and for her Codicil as an attachment amending her Last Will and Testament.
Dated on: [left blank]”
The Court was tasked with considering whether the testator handwriting her name in the attestation clause constituted a signature in accordance with the formalities for executing a Will in sections 6 and 7 of the Succession Law Reform Act (SLRA).
The applicant, BMO Trust Company, agent for the estate trustee, was advocating for the validity of the Codicil, on the grounds that the testator’s signature appears twice in the attestation clause, and this placement of the signature does not render the Codicil invalid in accordance with s. 7(2)(c) of the SLRA.
The respondent, one of the beneficiaries in the underlying Will, contested the validity of the Codicil, arguing that although the testator’s handwriting of her name occurs in the attestation clause, she had no intention to sign, or give effect to, the Codicil.
In the analysis of the case, the Honourable Justice Dietrich noted that Ontario is currently a “strict compliance” jurisdiction, such that the SLRA formalities must be complied with. She reviewed the statutory requirements of section 6 of the SLRA, which states that “A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.” Her Honour also reviewed section 7’s requirements regarding the signature, which must appear “at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.”
Further, Her Honour considered subsection 7(c) of the SLRA, which makes it clear that a will is not rendered invalid “by the circumstance that the signature is placed among the words …of a clause of attestation”, and subsection 7(e), which states that a will is not rendered invalid if there is sufficient space “on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.”
What distinguishes a “signature” from writing out one’s name in long hand was delineated, with Dietrich J. stating that “it must be apparent that what is alleged to be the act of signature was specifically intended by the testator to give legal effect to the document, per s. 7(1) of the SLRA.”
The evidence in this case was also assessed. It notably included that: (i) the holograph Codicil was an unfinished document, with certain blanks, including next to the space where the testator would have likely placed her signature, (ii) though not required, the testator intended to sign the document in the presence of specific witnesses, (iii) the testator understood that the Codicil needed to be signed to be valid, and (iv) after the Codicil was prepared the testator advised the Law Society of Ontario in writing that she had “handwritten a codicil (not yet signed).”
Justice Dietrich concluded upon the evidence proffered that the testator, in writing her name when drafting the holograph Codicil, did not intend to give legal effect to the document.
With legislative changes coming in the new year, we can expect to see similar cases cropping up with increasing frequency.
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Sometimes, the court will say that enough is enough. It will put the brakes on frivolous estate litigation.
One such case is the Court of Queens’ Bench of Alberta decision of Re Klein. There, the deceased died in 2012. She was survived by her three children, who were the beneficiaries of her estate. The estate appears to have consisted of a real property, and some bank accounts. Notwithstanding the apparent straightforwardness of the estate, it appears that multiple proceedings were commenced as between the beneficiaries and the estate trustee in relation to the estate.
On August 27, 2021, after various earlier court attendances, Justice Graesser put a stop to the litigation. The matter was before the court as two of the beneficiaries sought further disclosure of banking activity in relation to a $99.25 deposit into the estate account.
In the decision, Justice Graesser reviewed the history of the estate administration and the evidence of the parties. He concluded that there was no merit in requiring the estate trustee to make any further disclosure. He noted the “proportionality” provisions of the Rules of Court. While the estate trustee may not have accounted perfectly, “Any further work, by [the estate trustee] or by the Courts in receiving or reviewing any further information or submissions, would be completely disproportionate to the magnitude of any possible failings.”
Justice Graesser also noted the court’s readiness to dismiss frivolous claims as an abuse of process. “I subscribe to [ACJ Rooke’s] comments about the need for a cultural shift in civil litigation and to save the Courts and the litigants themselves from frivolous litigation.”
Justice Graesser pointed out that the estate trustee had previously passed her accounts, rendering may of the current complaints by the beneficiaries as res judicata. Further, the passage of time had rendered many of the claims by the estate trustee against the beneficiaries as statute-barred.
While the judge determined that he could not strike claims without hearing from the parties, he was able to continue a stay of proceedings, and not allow any of the parties to take any further steps without leave of the Chief Justice. The parties were, however, permitted to move to dismiss any existing claims.
Justice Graesser concluded by advising: “I do not encourage the parties to continue their disputes in Court. From my extensive review of the Court filing from its beginning, I am satisfied that the parties have nothing to gain by continuing their fight.”
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