Cherry v Boultbee is an 1839 English case whose decision affects the law of wills and estates in common law jurisdictions to this day.
The rule, as outlined by the Honourable Mr. Justice Clark in the 2011 Alberta decision, Re Moody Estate, can be succinctly described as follows:
“Where a person entitled to participate in a fund is also bound to make a contribution in aid of that fund, he cannot be allowed to participate unless he has fulfilled his duty to contribute.”
Justice Clark then described this rule’s application to estates law, quoting the 1891 decision of Re Akerman, Akerman v Akerman, which outlined that “the circumstance that a debt owing to a testator was statute barred at the date of death of the testator did not prevent the application of the rule in Cherry v Boultbee from being applied.”
In other words, if a beneficiary of an estate personally owed a debt to the deceased, prior to his or her death, then said beneficiary’s share in the estate could be deducted to satisfy this debt, even if this debt was barred by statute.
However, Justice Clark ultimately decided that the rule in Cherry and Boultbee did not apply in this case, throwing doubt as to its future application in Canada.
Following Moody, this rule was once more proposed in the 2017 British Columbia case of Re Johnston Estate. In this decision, Justice Church disagreed with Justice Clark and re-affirmed the application of the rule in Cherry v Boultbee:
“The rule in Cherry v Boultbee does not confer on the estate any right to recoup the amount owing but rather operates to ensure fairness in the distribution of an estate, recognizing that the relationship between a testator and his or her beneficiaries is typically not at arm’s length. The fundamental purpose of the rule is to ensure that beneficiaries are treated fairly and it embodies the principal that he who seeks equity must do equity.”
It remains to be seen what the fate of the rule in Cherry v Boultbee will be in future Canadian case law.
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As lawyers well know, all lawsuits must be instituted within the applicable limitation period as a first hurdle to successful litigation. While the time periods within which one must start a claim are clear in the Limitations Act and in other legislation, the time from which those periods start to run is not always so clear and may be a matter for a judge to decide.
In Zurba v. Lakeridge Health Corp. (2010), 99 O.R. (3d) 596 (ON SCJ), the plaintiff fractured his ankle in a way that exposed his bone and internal tissues to grass and dirt in August of 2003. The doctor who initially treated the plaintiff cleaned and dressed the wound with a cast instead of proceeding with the necessary surgery. Significant ongoing infection at the fracture site later caused another doctor to suggest amputation. The plaintiff refused and after lengthy course of surgeries and therapy with no improvement, the plaintiff retained counsel and initiated the law suit. The plaintiff subsequently received an expert medical opinion from an orthopaedic expert that the treating doctor’s care was negligent.
The Ontario Superior Court considered the Limitations Act, 2002 and its applicability with respect to the discoverability of the cause of action. Lauwers, J. found that a plaintiff must not only know of the injury but must also know that someone erred before the cause of action crystallizes and the limitation period commences running.
The Court went on to establish two categories of cases: 1) Where an expert opinion is not necessary to know whether to institute an action because all the material facts are known; and 2) where an expert opinion is required to trigger the limitation period because all material facts cannot be known without one. In Zurba, notwithstanding that the statement of claim was issued before the expert medical report was obtained, the Court found that it could consider the report with respect to discoverability in order to determine when the limitation period began to run.
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