Tag: Will Challenge
The Consolidated Practice Direction Concerning the Estates List in the Toronto Region was established for the hearing of certain proceedings involving estate, trust and capacity law, applying to matters on the Estates List in the Toronto Region.
As of March 9, 2021, Part VII (Contested Matters – Estates) of this practice direction was amended to make reference to model orders prepared by the Estate List Users’ Committee.
Generally, parties are expected to take the time and care to prepare proposed orders giving directions for consideration by the court. If the parties are unable to agree upon an order giving directions and a contested motion for directions is required, each party must file a copy of the draft order giving directions it is seeking with its motion materials.
In addition to providing requirements for what orders giving directions should address, where applicable, this practice direction now includes the following model orders:
- Order Giving Directions – Appointment of Section 3 Counsel
- Order Giving Directions – Power of Attorney/Guardianship Disputes
- Order Giving Directions – Will Challenge
- Order Giving Directions – Dependant’s Support
- Order Giving Directions – Passing of Accounts
As noted in the practice direction, the preparation of draft orders for consideration by the court will greatly expedite the issuance of orders. Where the relevant model orders have been approved by the Estate List Users’ Committee, a copy of the draft order showing all variations sought from the model order must be filed.
The addition of model orders can greatly benefit the Estates List in the Toronto Region. Among other things, these model orders provide a baseline for all parties, such that it can significantly reduce drafting time and potential disagreements on wording among parties, which in turn can increase efficiency and reduce costs.
Many thanks to the Estate List Users’ Committee for their time and efforts in preparing these model orders!
Thank you for reading.
Handwritten Wills/Codicils are certainly quite rare, particularly for people with means. In certain circumstances, and particularly where the testator had made a pre-existing Will, the presence of a subsequent handwritten Will or Codicil can suggest the presence of suspicious circumstances.
As Paul Trudelle blogged last week, Larry King apparently executed a secret handwritten codicil in 2019 that divided his roughly $2 million estate amongst his five children, to the exclusion of his wife, Shawn King. Mrs. King apparently intends to challenge the validity of the 2019 codicil.
In Ontario, an amendment to a Will is referred to as a “codicil” and it is considered to be a Will, for the purposes of the Succession Law Reform Act. A handwritten Will, in Ontario, is referred to as a “Holograph Will” and the only requirement is that it be made wholly by the testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. The fact that a Holograph Will is usually made without witnesses will often cause litigation, particularly if there are suspicious circumstances surrounding its execution and/or discord in the family of the deceased.
If Mr. and Mrs. King resided in Ontario, Mrs. King could pursue various claims in challenging the validity of the 2019 codicil (subject to the available evidence), including:
- Lack of requisite testamentary capacity on Mr. King’s part;
- Mr. King being subject to undue influence from any or all of his children (or other third parties);
- Presence of suspicious circumstances in the execution of the codicil; and
- Presence of fraud in the execution of the document (which is pleaded quite rarely, as there are serious costs consequences for those that make such an allegation but are unable to prove it).
It will certainly be interesting to see how this matter unfolds, particularly taking into account that $2 million is not a significant amount when the costs of litigation are taken into account.
Interestingly, some sources suggest that his Estate is actually worth $50 million, which sounds a lot more accurate!
Thanks for reading!
Find this blog interesting? Please consider these other related posts:
Broadcaster Larry King is once again in the news. This time, he is making news, not reporting on it.
Larry King died on January 21, 2021, at the age of 87. He left a will made in 2015. However, he apparently made a new, handwritten will dated October 17, 2019, just two months after he filed for divorce from his seventh wife, Shawn Southwick King. They were married for 22 years. In the codicil, he left his estate to his five children (two of whom died after the 2019 will was written) and cut Shawn out of his estate plan.
Shawn is now challenging the validity of the 2019 will. Shawn alleges that Larry King was of “questionable mental capacity” when the 2019 will was signed, and was subjected to undue influence from Larry King Jr. Shawn also alleges that the terms of the 2019 will violate the terms of two postnuptial agreements entered into by Larry King and Shawn
There is also a contest as to who should be appointed as estate trustee. Larry’s son, Larry Jr. is asserting that he be appointed as administrator. Shawn is also claiming entitlement to be administrator. Shawn is claiming that although Larry King filed for divorce, he was not pursuing it, and the couple was still speaking, engaged in counselling and there was a possibility of reconciliation. She argued that Larry Jr. was never involved in Larry King’s career or business. Apparently, Shawn was named as administrator in the 2015 will.
Larry King’s estate is estimated as having a value of $2m US.
Larry King was once quoted as saying, “Getting your house in order and reducing the confusion gives you more control over your life. Personal organization somehow releases or frees you to operate more effectively.” Unfortunately, his estate plan may not have been fully in order.
Thank you for reading.
Sometimes when parties arrive at a settlement, notwithstanding that the settlement may objectively be in their interests, they may not necessarily be pleased with the outcome. If the settlement has been concluded and fully documented, however, a party who has had second thoughts will likely be out of luck if they want to avoid complying with the agreement. This is important because parties should usually be held to the bargains that they make in a settlement.
A settlement does not necessarily have to be in writing to be valid, but like any contract, there must be a “meeting of the minds” on the essential terms of the agreement.
In a recent decision, Daehn v Lalonde, 2021 ONSC 301, the court considered a motion to enforce a settlement where draft minutes of settlement had been exchanged, but not signed. The dispute between the parties underlying the settlement concerned the validity of competing Wills. The parties were engaged in negotiations between January and July 2019, during which time several offers and versions of draft minutes of settlement were exchanged. In mid-July, counsel for the responding parties to the motion advised the moving party that he would no longer be acting for the responding parties, and retracted all offers to settle made by the responding parties.
The moving party took the position that certain conduct by counsel for the responding parties should be taken as akin to acceptance of terms in the minutes of settlement. Such conduct included providing bank statements that had been requested as a condition of settlement, and proposing changes to some terms of the draft minutes without complaint about others. The court did not accept this argument, and did not find acceptance of the agreement by words or conduct of the responding parties.
The court briefly reviewed the law regarding validity and enforcement of settlements. Like a contract, a concluded settlement requires both a mutual intention to create a legally binding contract, and agreement on all essential terms of the settlement.
The court found that the responding parties never agreed to the terms of settlement. Despite the moving party’s argument that the responding parties had agreed to the sole “essential” term, the court found that it cannot be the case that the moving party alone can dictate what terms of the settlement are essential. The court concluded that a settlement cannot be imposed where no agreement was reached.
Thanks for reading,
You may also enjoy these other blog posts:
In a will challenge proceeding, the propounder has the onus of proving due execution, knowledge and approval, and testamentary capacity. The propounder is assisted by a presumption that if the will was duly executed, after having been read over or read to the testator who appeared to understand it, the testator had knowledge and approval, and the necessary testamentary capacity. This presumption can be rebutted by evidence of suspicious circumstances, based on evidence led by the challenger. The challenger must introduce evidence that, if accepted, refutes knowledge and approval or testamentary capacity. If this is done, the onus reverts to the propounder. Where a challenge is based on undue influence, the onus of proving undue influence is on the challenger.
The difficulties that arise for a challenger in refuting the presumption of capacity or of proving undue influence are discussed in the Alberta Court of Queen’s Bench decision of Logan Estate (Re), 2019 ABQB 860 (CanLII).
There, the deceased had 2 prior wills that provided that her estate was to be divided amongst her 6 children. If a child was to predecease, that child’s share would go to his or her issue. Subsequently, one of the children died. The deceased made a new will, leaving her estate to the 5 surviving children. A child of the predeceased child challenged this will.
The evidence of the drafting solicitor was that the deceased directed the changes. According to the lawyer’s notes, the husband of the predeceased child (the challenger’s father) told the deceased that he had lots of money, and that his children would be well taken care of financially under his estate.
The husband later denied this. However, by this time, the husband was suffering from dementia. He was not able to provide an affidavit or be examined on his evidence.
The court referred to the onuses, and the “epic hurdle” on the challenger. Section 11 of the Alberta Evidence Act (similar to s. 13 of the Ontario Evidence Act) requires that in an action by or against heirs, next of kin, executors, administrators or assigns, an opposed or interested party may not obtain a judgment on that person’s own evidence in respect of any matter occurring before the death of the deceased person unless the evidence is corroborated by other material evidence.
On the issue of corroboration, the court quoted from Ian Hull and Suzana Popovic-Montag’s Probate Practice:
“The issue of meaningful corroboration with respect to claims against an estate is a fundamental starting point in any estate litigation evidentiary analysis. One of the unique challenges of estate litigation is that the star witness and primary source of information is, almost always, dead. Section 13 of the Evidence Act specifically addresses this dilemma, and aims to prevent claims against estates that are based on mere allegations. The provision requires that there be independent corroboration of allegations [claims] against estates.”
As the evidence of the challenger could not be corroborated, due to her father’s incapacity, her challenge to the will was dismissed.
In dismissing the challenge, the court offered this cold comfort to the challenger:
I appreciate that [the challenger] is disappointed that she is not receiving what she believes is her proper share of Velma’s estate. However, a family member (even a lineal descendant) does not have an automatic right to a share in the estate of a deceased relative who leaves a will. The testator, through her will, has the sole power to determine the distribution of her assets. A testator may change her mind from a previous will, whether for good reason or not. These harsh realities apply even where the ultimate distribution is contrary to that family member’s sense of fairness or rationality.
The decision was upheld on appeal by the Court of Appeal of Alberta at Logan Estate (Re), 2021 ABCA 6 (CanLII).
Thank you for reading.
In June of this year, the Divisional Court of Ontario clarified that Section 10(1) of the Estates Act did not supersede the Courts of Justice Act where leave is required in order to appeal an interlocutory order.
In Luck v. Hudson Re: Estate of Albert Luck, the court however did grant leave, in order to immediately dismiss an appeal that raised issues not heard by the judge in the court of first instance and revealed ulterior concerns.
Steven Luck is the son of the late Albert Luck. Albert owned a house jointly with his wife Marylou Hudson. The relationship between Steven and Albert had deteriorated during Albert’s life and litigation ensued. Albert sued his son, who in turn filed a counterclaim- skidoos and cottage upgrades were all under dispute. Then Albert died, and the Will challenge began.
The motion judge, Justice Salmers, held that money from the sale of the house of Albert and Marylou be paid into court to the credit of the estate of Albert and to be paid out and distributed pursuant to the terms of the Will.
Subsection 10(1) of the Estates Act says that a party to a proceeding under that statute “may appeal to the Divisional Court from an order, determination or judgment if the value of the property affected” exceeds $200. Steven did not seek leave to appeal the interlocutory order and instead relied on 10(1) saying that he had an appeal as of right.
Since only this brief decision is reported, we do not know the underlying dispute which gave rise to Salmers, J’s interlocutory injunction, but the panel made two issues clear:
1: Leave is required to hear an appeal of interlocutory injunction
2: An appeal is not the appropriate venue to raise new issues, or air grievances.
The Courts of Justice Act is clear in section 133 that no appeal lies without leave from an order made on consent, or where the appeal is only to costs. The test for granting leave to appeal from an interlocutory order is an onerous one. If the panel feels the decision was well reasoned and the issues raised are not of general importance (Bell ExpressVu Ltd v Morgan (2008) O.J. No. 4758) leave will not be granted.
In this case, the court determined that Steven was seeking not only to appeal the injunction but that, “at its root the true purpose of that motion was to raise concerns as to the validity of the Will.” While Steven made no objection to the appointment of Trustees or to the Will in first instance, the court went on to say:
“What has become apparent is that Steven Luck wants to contest the Will in order to overturn the distribution of the funds held in court. He wishes those funds to remain available as security for the enforcement of a counterclaim he has made in response to an action commenced by his father (prior to his death) against Steven Luck.”
The court determined that Steven was actually seeking a Mareva injunction: A freezing of the estate assets, as security, in advance of any judgement made, potentially, in his favour.
The court found Steven had not met any of the prerequisites for such an order, and in fact, may have been barred by the Limitations Act, 2002, as previously determined by Justice Salmers.
In the end, as quickly as leave was granted, the appeal was dismissed. And Steven, now on the hook for a $25,000 cost award, was no better off.
A valuable caution to those considering the appeal route.
Thanks for reading!
Suzana Popovic-Montag and Daniel Enright
The recent case of Tilley v Herley 2019 ONSC 5405 serves as a reminder that courts will not approve an interim distribution of the funds in an estate if there is the possibility of new testamentary documents coming to light.
In this case, the deceased had been estranged from her four children for much of their lives; however, she reconciled with one of her children, Roxanne, before her death in 2019. Roxanne was appointed as sole executrix and trustee and was named as the only beneficiary of the entire estate in the most recent will which was executed in 2008. Prior to her death, the deceased transferred the main asset of the estate, a residence in Mississauga, to herself and Roxanne as joint tenants. When she died, the residence passed to Roxanne by right of survivorship.
Two of the other children brought a challenge to the will on the basis that their mother lacked testamentary capacity, that she was unduly influenced by the Respondent Roxanne, and that the will was executed under suspicious circumstances. They also sought a declaration that the residence should be subject to the presumption of resulting trust and should not pass to Roxanne by right of survivorship. Roxanne had already sold the residence and both parties agreed that the proceeds of the sale would be held in trust pending litigation. Roxanne then brought a motion seeking an interim distribution of 25% of the funds held in trust. The rationale behind this was that even if the other siblings’ will challenge was successful and Roxanne lost at trial, she would still receive 25% of the estate as it would be divided up in equal parts amongst the four children.
The case turned on the fact that even though no will prior to 2008 had been located, there was evidence that an earlier will may have existed. This made it impossible to determine that the Respondent’s interest in the estate would be a minimum of 25% and the court found that making an interim distribution of the proceeds would be “premature and inappropriate”. Another relevant factor was that at this early stage in the litigation, there had not been an accounting with respect to the entire estate, including debts and liabilities, as well as future expenses including litigation costs, making it impossible to determine the value of 25% of the estate.
The court dismissed the motion, as there was a possibility that the deceased may have made an earlier will and until this will could be located or its existence could be discounted, it was impossible to know the extent of Roxanne’s entitlement should the will challenge be successful. The court also noted that it was conceivable that none of the deceased’s children would be beneficiaries under a previous will if the 2008 will were to be declared invalid by the court. This case demonstrates that applying for an interim distribution of estate funds can be ill-advised and will likely fail if there is evidence indicating the potential existence of an undiscovered prior will. This would make it impossible for the court to determine the minimum amount that either party may receive if the contested will is declared invalid.
Thanks for reading,
Ian Hull and Sean Hess
A new Saskatchewan Court of Appeal case sheds more light on the law of standing with respect to will challenges. In Adams Estate v. Wilson, the Appellant executor appealed an earlier decision in which it was held that the Respondent, Mr. Wilson, had legal standing to bring an application to have the deceased’s will proved in solemn form. Mr. Wilson purported to be the deceased’s long-time friend and employee, and he submitted that the deceased had promised to leave him her “ranching operation”; despite this claim, the deceased did not name Mr. Wilson in her will. Instead, she imbued her executor with the discretionary power to distribute the estate to deserving parties, including “certain persons who have been trustworthy and loyal”.
The Chambers judge reasoned that since the statute, Rule 16-46, allows an application by a person who “may be interested in the estate”, Mr. Wilson, as potentially both a creditor and beneficiary, may have been an interested party and therefore had standing. Mr. Wilson succeeded in qualifying himself as a potential creditor because of a related action against the estate. His claim to be a potential beneficiary, though murkier, also succeeded; the claim was that since Mr. Wilson had been “trustworthy and loyal”, the executor could choose to give him a part of the estate in adherence with the will – making him a potential beneficiary.
The Court of Appeal allowed the appeal, finding that Mr. Wilson was a mere “stranger to the will” and, as such, did not have standing. Rather, only the following classes of persons, with specific financial or legal interests in the estate, have standing to challenge a will: (1) Those named as beneficiaries or otherwise designated in the will or other testamentary documents; (2) those to whom the estate would devolve under an intestacy; and (3) those with claims pursuant to The Dependants’ Relief Act, The Family Property Act, and The Fatal Accidents Act. The Court explained that creditors, as Mr. Wilson claimed to be, do not have standing because they have no gain in “interfering with the devolution of property”.
The Court also found fault with Mr. Wilson’s claim to be a potential beneficiary, which was described as disingenuous, circular, and disconnected:
“He ignores that his purpose in requesting standing is to challenge the validity of the Will and the very bequest upon which he based his claim of standing. This is perverse logic because, if successful, Mr. Wilson will have eliminated any chance that he would take under the Will.”
Mr. Wilson was trying to derive rights from a will he was repudiating and suggesting that he might receive a gift from an executor whose legitimacy he denied and against whom he was litigating. He was attempting to win on a legal technicality – on form in spite of substance. In addition to reiterating the parties who may challenge a will, the Court in Adams Estate v. Wilson has put another brick in the wall between those seeking to exploit legal technicalities and the successful results they seek.
Thank you for reading – have a wonderful day,
Suzana Popovic-Montag & Devin McMurtry.
Under Rules 75.01 and 75.06 of the Rules of Civil Procedure, any person who has a financial interest in an estate may commence an application to have a will “proved in such manner as the court directs.” In Neuberger Estate v York, 2016 ONCA 191, the Ontario Court of Appeal clarified that the court has a discretion whether to order that a testamentary instrument be proved. The Court went on to state that Rule 75.06 requires a 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.”
In Joma v Jaunkalns, 2019 ONSC 6788, the Ontario Superior Court of Justice considered the principles mentioned in Neuberger Estate v York. In doing so, the case provides a helpful review regarding the minimum evidentiary threshold to permit a will challenge.
In Joma v Jaunkalns, the deceased, Zenta Palma, died in September of 2018. She was a widow and did not have any children. Zenta’s siblings and only niece, Brigita, predeceased her.
The Deceased was survived by Brigita’s brother, Ronald. She was also survived by Brigita’s husband, Robert, and their children, Michael and Emily.
In 2012, the Deceased executed a Will naming Robert as her estate trustee and Michael and Emily as the residual beneficiaries. Robert’s brother, Viktor, was named as the alternate estate trustee and his children were named as legatees.
Ronald claimed that he was named as a residual beneficiary under an earlier Will but the Will could not be located.
Ronald asserted that, at the time the Deceased executed the 2012 Will, she lacked testamentary capacity and was unduly influenced by Robert. The question before the court was whether Ronald met the required threshold to be granted his request for the 2012 Will to be proven.
Upon considering the evidence of Ronald and Robert, Justice Dietrich found that Ronald did meet the threshold. She arrived at this conclusion based on the following:
- The Deceased was an 84-year old widow who was reliant on her two sisters and her niece and nephew for support and assistance;
- In 2011, the Deceased was taking prescribed medication that would “tranquilize” her;
- The Deceased was taking anti–anxiety medication approximately one month before she executed the 2012 Will;
- Robert’s evidence that the Deceased never had any cognitive impairment was found to be a broad conclusory statement;
- Robert was a physician with experience assessing capacity but he did not offer any evidence of having examined the Deceased or knowing exactly what medication she was taking and in what dosage;
- Ronald’s evidence of Robert’s involvement in the Deceased’s finances raised the spectre of Robert’s potential undue influence over the Deceased;
- For example, Robert undertook a banking transaction on behalf of the Deceased which had upset her so she asked Robert to reverse it.
Based on the evidence above, Justice Dietrich found that Ronald’s evidence amounted to more than suspicion. If accepted, it would call the validity of the Deceased’s Will into question.
Furthermore, a review of the Deceased’s financial records, medical records and the drafting solicitor’s file would be beneficial. Quoting from Seepa v. Seepa, 2017 ONSC 5368, Justice Dietrich went on to state that Ronald “ought to be given the tools such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits.”
In summary, Joma v Jaunkalns demonstrates that the evidentiary burden on a party who wishes to challenge a will is not fairly high. Evidence that amounts to more than a suspicion should suffice.
Thanks for reading!
Ian Hull and Celine Dookie
For further reading on this topic, check out these other blogs:
The testators died in 2008. The family realized there was a disagreement about the validity of their parents’ codicils that year but everything seemed to be on hold until Helen brought an application in 2015 to determine the validity of the codicil. In response, Krystyna brought a motion for summary judgment to dismiss Helen’s application on the basis it is statute barred pursuant to the Limitations Act, 2002. This motion was brought by Krystyna because she was interested in maintaining the force and effect of the codicils that gave her certain properties. Thereafter, Helen cross-motioned for summary judgment on her application.
Rule 20.04 of the Rules of Civil Procedure sets out the basis for summary judgment. Summary judgment shall be granted if: (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (b) if the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. The Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, determined that “a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.”
With that in mind, Justice Dietrich found that Krystyna’s motion for summary judgment was appropriate for the following reasons (see para. 35):
- There were no material facts in dispute;
- No additional facts would emerge at trial;
- The application of an absolute limitation period was generally a fairly straightforward factual analysis;
- That based on the evidence before her, this matter can be resolved without a trial and that a trial of this narrow issue would be a more expensive and lengthy means of achieving a just result.
The Ontario Court of Appeal agreed with Justice Dietrich’s finding on this point. The panel emphasized how both parties brought summary judgment motions and filed affidavits with exhibits of their own.
In contrast, a similar summary judgment motion was unsuccessful in Birtzu v. McCron, 2017 ONSC 1420, 2019 ONCA 777 (on the issue of costs, only). The Court in Birtzu found that summary judgment was not appropriate and ordered costs against the defendant in any event of the cause (with reasons that were unreported). That said, the defendant was ultimately successful in proving that the plaintiffs were statute barred after a full trial on all issues.
Thanks for reading!
Doreen So and Celine Dookie