Lessons from Neuberger Part 1: Does an interested person have an automatic right to proof in solemn form?
The Ontario Court of Appeal released not one, but two, decisions last week in relation to a Will Challenge proceeding. In addition to Spence v. BMO Trust Company, 2016 ONCA 196 (which is well covered by the media, and by our blog here), the Court of Appeal also released the decision of Neuberger v. York, 2016 ONCA 191.
The case of Neuberger v. York involves the Estate of Chaim Neuberger. The late Chaim Neuberger was a holocaust survivor, and Toronto real estate mogul, whose success equated to a fortune of over $100 million on his death according to the National Post. Chaim was predeceased by his wife, Sarah Neuberger, and he was survived by his daughters, Edie Neuberger, and Myra York, and the adult children of Edie and Myra. Edie and Myra were the named Estate Trustees of Chaim’s 2010 Wills, as well as his prior 2004 Wills.
Chaim passed away on September 25, 2012, and Edie brought an application to challenge the validity of Chaim’s 2010 Wills on December 19, 2013. In January, 2014, Edie’s son, Adam, also brought a motion to challenge the validity of Chaim’s 2010 Wills, amongst other relief. Edie’s Will Challenge was dismissed at first instance, along with Adam’s Will Challenge.
On appeal, Adam argued that an “interested person” is entitled, as of right, to have a Will proved in solemn form, prior to a grant of probate. Adam argued that this right stems from Rule 75.01 of the Rules of Civil Procedure, which reads as follows:
FORMAL PROOF OF TESTAMENTARY INSTRUMENT
75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.
On this point, the unanimous Court of Appeal disagreed. The Hon. Justice Gillese considered a plain reading of Rule 75.01, in conjunction with Rule 75.06, and determined that an “interested person” may request proof in solemn form but cannot require it (at paragraph 84). Moreover, “the court has a discretion whether to order that a testamentary instrument be proved, as well as a discretion over the manner in which the instrument is proved” (at paragraph 87). The correct approach to Rule 75.06 requires an applicant, or moving party, to “adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded” (at paragraph 89).
Thanks for reading! Stay tuned this week for more lessons from Neuberger.
In Re Henry, the deceased died on May 28, 2005. Two weeks earlier, on May 12, 2005, he had made a Will designating his second wife as his sole beneficiary. The deceased’s son from a prior marriage challenged the will on the grounds of undue influence, lack of testamentary capacity and lack of knowledge and approval of the contents of the will.
The trial judge found in favour of the second wife on all issues: due execution was shown, the deceased had testamentary capacity along with full knowledge and approval of the contents of the will. The challenger’s evidence, which consisted largely of his and his sister’s testimony, did not bear scrutiny: some of it was inadmissible, testimony appeared reconstructed as opposed to remembered, testimony contained factual inconsistencies, legal submissions contained errors of law and so on. By contrast, the evidence brought by the second wife was accepted in whole.
No new law is generated in Re Henry, at least not per se. But there is a concise consideration of the applicable standard of proof which will be helpful for any lawyer making submissions regarding evidence in a will challenge. Newbould J. points out that the principle in Vout v. Hay,  S.C.R. 6 that evidence of suspicious circumstances must "be scrutinized in accordance with the gravity of the suspicion" may no longer be good law as a result of F.H. v. McDougall, 2008 S.C.C. 53. F.H. v. McDougall states "[t]here is only one legal rule and that is in all cases, evidence must be scrutinized with care by the trial judge." So which is it: Vout v. Hay or F.H. v McDougall?
Having laid out the jurisprudence, Justice Newbould states:
"I need not decide in this case whether the passage from Vout v. Hay that I have referred to is still good law because in my view the evidence is the same regardless of whether the evidence is scrutinized with greater care in accordance with the gravity of the suspicious circumstances. I have taken care to scrutinize all of the evidence".
Have a great day,
Listen to The Absentee Act
This week on Hull on Estates, Christopher Graham and David Smith talk about The Absentee Act and some of the different scenarios that it applies to.