Earlier this week, I blogged about the Ontario Court of Appeal decision in Neuberger v. York, 2016 ONCA 191, and the first lesson from this case. The second lesson from this case is that the doctrine of estoppel is not permitted to bar challenges to the validity of wills.
As a short recap of the facts from my prior blog, the late Chaim Neuberger was Edie’s father. Edie and, her sister, Myra, were the named Estate Trustees of the 2010 Wills. Between the death of Edie’s father on September 25, 2012, and the commencement of Edie’s challenge of the validity of the 2010 Wills on December 19, 2013, Edie was found by the lower court to have taken steps as an Estate Trustee. Such steps were, for example, the payment of taxes and the redemption of preference shares. This led the lower court to apply the doctrine of estoppel by representation to stop Edie from challenging the 2010 Wills (see Neuberger v. York, 2014 ONSC 6706).
On this point, the Court of Appeal disagreed. The Court of Appeal unanimously took the view that estoppel by representation and estoppel by convention do not lie to bar a challenge to the validity of a will (at paragraph 103).
The Hon. Justice Gillese found that the test for estoppel, as articulated by the Supreme Court of Canada in Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co.,  S.C.R. 932, is not applicable in probate matters. Canadian Superior Oil was found to deal with promissory estoppel in the context of a private lease agreement between two individuals, which is “fundamentally different than is the question of the validity of a will” (at paragraphs 104 to 108).
As a matter of public policy, the Hon. Justice Gillese stated as follows (at paragraph 118):
“estoppel is animated by the goal of creating transactional certainty between private parties in civil disputes. A will, however, is more than a private document. As explained above, a dispute about a will’s validity engages interests that go beyond those of the parties to the dispute and extend to the testator and the public. Once a testamentary instrument is probated, it speaks to society at large. Probate is an in rem pronouncement that the instrument represents the testator’s true testamentary intentions and that the estate trustee has lawful authority to administer the estate. Because of this, the court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated. It owes that duty to the testators, whose deaths preclude them from protecting their own interests, to those with a legitimate interest in the estate, and to the public at large. If the doctrine of estoppel were available to bar a party from having the validity of a will determined, the court’s ability to discharge that responsibility would be in jeopardy.”
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A close relative dies. Although you are not named as the Estate Trustee in the will, you cooperate and assist the Estate Trustee to begin the process of seeing to the administration of the estate. Suddenly, you find new evidence which you believe questions whether the deceased had the requisite capacity to execute the Will, and you contemplate bringing a will challenge. But is it too late? Have your actions to date made it such that you are no longer able to challenge the validity of the will? As a result of the doctrine of estoppel by convention, the answer is maybe.
At its most simple, the doctrine of estoppel by convention can be thought of as the court concluding that as a result of an individual’s prior representations or conduct, that it would be unequitable and unjust to now allow them to advance a claim. In the context of a will challenge, the doctrine of estoppel by convention will most often be raised when, prior to an individual having commenced a will challenge, they assisted and/or were involved in the administration of the estate. The argument which is advanced is that as a result of their involvement in having seen to the administration of the estate up to a certain point, that it would be unjust and unequitable to now allow them to challenge the validity of the will.
In Leibel v. Leibel, Madam Justice Greer found that as a result of the conduct of the Deceased individual’s son following his mother’s death (including assisting to sell his mother’s house, and assisting in dividing up certain household and personal effects), that he was now estopped from challenging the validity of his mother’s will. In Leibel, Madam Justice Green employed the test adopted by the Supreme Court of Canada in Ryan v. Moore to determine whether to apply the doctrine of estoppel by convention, being:
- The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly).
- A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position.
- It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.
In the event that all three elements of the test are found to apply, the court may apply the doctrine of estoppel by convention, and dismiss the will challenge.
Listen to: Hull on Estates #325 – Top Cases of 2012
Today on Hull on Estates, Stuart Clark and Natalia Angelini discuss two of the most interesting cases of 2012 – Rasouli v. Sunnybrook Health Services Centre and another case dealing with proprietary estoppel.
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Listen to Will Challenge Litigation – Part 11
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the differences between quantum meruit and propriety estoppel. As with any add-on claims, the courts require solid corroboration. They also discuss claims of resulting trust and claims of constructive trust.
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