Tag: Will Challenge
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.
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Ian Hull and Celine Dookie
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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.
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Doreen So and Celine Dookie
Today’s blog is a continuation of yesterday’s discussion regarding the limitations analysis in Piekiut v. Romoli, 2019 ONSC 1190, 2020 ONCA 26. No limitation period was found to apply where an estate trustee was simply seeking a determination and declaration as to whether certain codicils were valid or not valid.
The testators in this case died in 2008. They had 3 children, Helen, Victor, and Krystyna. A meeting took place in 2008 between all 3 children and a lawyer to discuss the administration of the Estate. During this meeting, Krystyna revealed, for the first time, the existence of codicils and declarations of gift that provide her with an interest in certain properties. Helen refused to acknowledge the validity of these new documents.
In 2015, Helen brings a court application. Her application was later amended, on the consent of parties, in 2018 to reflect that Helen was only seeking a declaration in respect of the validity of the codicils. Thus in 2019, Justice Dietrich’s decision was made in the context of Krystyna’s motion for summary judgment to dismiss Helen’s application on the basis that it was statute barred and Helen’s cross-motion for summary judgment on her application. Justice Dietrich found that, since Helen did not ask the court to determine the ultimate beneficiaries of the properties that were subject to the Codicil or to vest such properties in any particular beneficiary or beneficiaries, her application was not barred by the Limitations Act, 2002.
The Court of Appeal agreed with Justice Dietrich. The panel was also of the view that this case is distinguishable from Leibel v. Leibel, 2014 ONSC 4516 and Birtzu v. McCron, 2017 ONSC 1420 because of the consequential relief that was pleaded in those cases. Since the Court of Appeal decision did not go into the details of the relief sought in Birtzu (unlike its description of Leibel), it is helpful to understand the breadth of the Statement of Claim in Birtzu, which sought the following:
- an Order setting aside the Will;
- an Order setting aside the Deceased’s Powers of Attorney;
- an accounting of the entire Estate, as well as all financial transactions undertaken by the Deceased, or on his behalf, or on behalf of his Estate, from the date that the Deceased’s matrimonial home was sold in 2003 to the date of trial;
- Orders for the production and release of financial and medical information;
- an Order reversing all transactions undertaken by the Defendant, either directly or indirectly, without authority or in breach of her authority, or in breach of her fiduciary duties to the Deceased and to his beneficiaries, including the Plaintiffs;
- an Order tracing the property of the Deceased into the property owned by the Defendant, including her home;
- Orders for injunctive relief, including the issuance of a certificate of pending litigation;
- a Declaration that all property held in the name of the Defendant, or part thereof, is held by her for the benefit of the Plaintiffs;
- damages against the Defendant in the amount of at least $400,000.00, for conversion of property, breach of statutory duty, and/or breach of fiduciary duty;
- pre- and post- judgment interest; and
- costs fixed on a substantial indemnity basis, plus H.S.T.
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The main issue on appeal was whether Justice Dietrich was right in finding that the applicant could still ask the court to determine whether certain codicils were valid (or invalid) seven years after death. Justice Dietrich based her limitations analysis on whether this proceeding would fall under section 16(1)(a) of the Limitations Act, 2002 where there is no limitation period in respect of “a proceeding for a declaration if no consequential relief is sought”.
In her reasons, Justice Dietrich distinguished the case before her from the other limitations cases that have applied the two-year, basic limitation period to will challenges: Leibel v. Leibel, 2014 ONSC 4516, Birtzu v. McCron, 2017 ONSC 1420, and Shannon v. Hrabovsky, 2018 ONSC 6593. The case before her was different from Liebel, Birtzu, and Shannon because nothing had been done by the respondent beneficiary to propound the codicils that she had an interest in. If the proceeding was started differently in 2015, by the very beneficiary who has an interest in the codicils, then the estate trustee would have a limitations defence against the beneficiary. Since the beneficiary had done nothing, it remained opened to the estate trustee to commence an application for declaratory relief. Such declaratory relief is “a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs.’ It is restricted to a pronunciation on the parties’ rights” (see para. 46, 2019 ONSC 1190).
The Court of Appeal agreed that there was no limitation period in this case because the applicant did not seek consequential relief in addition to a determination of the validity or invalidity of the codicils. The Will had not been probated and nothing had been done for seven years to resolve the issue.
“In these circumstances, Helen was entitled to seek declaratory relief, simply to establish the validity, or lack of validity, of the codicils – to define the rights of the parties in order to avoid future disputes.”, Strathy C.J.O., MacPherson J.A., and Jamal J.A.
Thanks for reading and more on these limitation cases to follow later this week!
There have been a number of recent decisions discussing the threshold to be met before a court will allow a will challenge to proceed. These decisions flow from the Ontario Court of Appeal decision of Neuberger Estate v. York, 2016 ONCA 191 (CanLII). We have discussed this case in a number of our blogs. See here, for example.
Today, Rebecca Rauws and I recorded a podcast on the decision of Naismith v. Clarke, 2019 ONSC 5280. In that decision, the court held that the threshold for challenging a will on the basis of testamentary capacity was not met, while it was with respect to the issue of undue influence. The podcast should be posted soon.
More recently, the decision of Maloney v. Maloney, 2019 ONSC 5632 (CanLII) was released. There, the estate trustees brought a motion to remove a Notice of Objection filed by a child of the deceased.
The court ordered the removal of the Notice of Objection. The court noted that there was no basis for setting aside the will. An affidavit from the lawyer who prepared the will set out the circumstances under which the will was prepared. The lawyer had no concerns about the deceased’s capacity. Although the challenger suggested that there were suspicious circumstances surrounding the creation of the will, there was no evidence to support the suspicions. Further, there was no evidence of undue influence. The challenger “has not provided any evidentiary basis to support a further investigation into the validity off this will.” At best, the challenger’s position was that her father would not have drafted his will in such a way. This was not enough to support a challenge.
Of note is the fact that the court had the evidence of the drafting solicitor. In many will challenges, the challenger or the propounder is not able to put this evidence before the court at this early stage due to issues of privilege. Often, the first step in a will challenge proceeding is to obtain an order to allow the evidence of the drafting solicitor to be obtained, along with medical notes and records.
Another important factor noted by the judge was the effect of the will challenge. The challenge stalled the administration of the estate. The court noted that even if the will challenge was successful, it would have no real effect on the distribution of the estate. The will provided that the estate was to be distributed to the three children of the deceased. On an intestacy, the distribution scheme would be the same, except for the specific disposition of an oak china cabinet.
In such cases, the court’s gatekeeping role is a tough one. The court must ensure that frivolous challenges do not proceed, while ensuring that it is able to ascertain and pronounce what documents constitute the testator’s valid will. The threshold should not be too high. As stated succinctly by Justice Myers in Seepa v. Seepa, 2017 ONSC 5368 (CanLII), “At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she 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.”
Have a great weekend.
This week on Hull on Estates, Paul Trudelle and Christina Canestraro discuss Cavanagh et al. v Sutherland et al., in which the Ontario Superior Court of Justice addresses questions of fact and law related to motions for summary judgment and mistake of fact.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
This week on Hull and Estate, Natalia Angelini and Sydney Osmar discuss Dale v Prentice, in which the Ontario Superior Court of Justice addresses whether a drafting solicitor can represent the estate in a will challenge.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
Ante-Mortem Probate, or Pre-Death Probate, is a process of probate which validates the Will of a testator during his or her lifetime and may be particularly useful for testators who fear that their Will may be subject to a challenge following their death.
Various models of Ante-Mortem Probate have been explored in the past by American scholars and include the following proposed models:
- The “Contest Model”, reviewed by Professor Howard Fink, is where each of the beneficiaries are identified, including those that would benefit on an intestacy and the testator essentially becomes the moving party in his or her own suit against all possible beneficiaries of his or her Estate. [Antemortem Probate Revisited: Can an Idea Have a Life After Death? (1976) 37 Ohio St LJ 264]
- The “Conservatorship Model”, explored by Professor John H. Langbein, is where the testator is required to apply to the Court in a manner similar to the “Contest Model”, however, instead of each of the specific beneficiaries being involved, a Guardian Ad Litem (Conservator) represents the interest of all potential beneficiaries, including any unborn or unascertained beneficiaries. [Living Probate: the Conservatorship Model (1980)]
- The “Administrative Model”, set out by Professor Gregory S. Alexander and Albert M. Pearson is neither judicial nor adversarial. There is no requirement of notice to the beneficiaries or in fact “interested parties” as one of the significant concerns with the other models of Ante-Mortem Probate is the confidentiality of the testator. [Alternative Models of Antemortem Probate and Procedural Process Limitations on Succession (1979-1980) 78 Mich L Rev 89]
Only certain American States allow Ante-Mortem Probate, whereas Canada does not have any provinces or territories with a similar arrangement.
Given the number of suits that are commenced following the death of testators across Canada, such an arrangement could be beneficial in that at the very least, a testator who expects that there will be a challenge to his or her Estate plan could take an active part in adjudicating whether his or her Will is indeed, valid.
Considering the complicated familial arrangements that are often present in our society today, perhaps addressing challenges of things like capacity of the testator, undue influence or the presence of suspicious circumstances would make more sense before the testator’s death. This is particularly an issue where a testator’s capacity had been in question for a while and the Will being challenged was executed a decade or more before death.
There are, of course, certain potential negative effects of any Ante-Mortem Probate regime, particularly the possibility that it would encourage litigation that would not otherwise arise, following the death of the testator.
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It is not uncommon for the lawyer who drafted a testator’s will or codicil to subsequently be retained by the Estate Trustees after the testator’s death to assist with the administration of the estate. The rationale behind the drafting lawyer being retained to assist with the administration of the estate appears fairly self-evident, for as the drafting lawyer likely has an intimate knowledge of the testator’s estate plan and assets they may be in a better position than most to assist with the administration of the estate.
While retaining the drafting lawyer to assist with the administration of the estate is fairly uncontroversial in most situations, circumstances could become more complicated if there has been a challenge to the validity of the testamentary document prepared by the drafting lawyer. If a proceeding has been commenced challenging the validity of the testamentary document, there is an extremely high likelihood that the drafting lawyer’s notes and records will be produced as evidence, and that the drafting lawyer will be called as a non-party witness as part of the discovery process. If the matter should proceed all the way to trial, there is also an extremely high likelihood that the drafting lawyer would be called as a witness at trial. As the drafting lawyer would personally have a role to play in any court process challenging the validity of the will, questions emerge regarding whether it would be proper for the drafting lawyer to continue to represent any party in the will challenge, or would doing so place the drafting lawyer in a conflict of interest?
Rule 3.4-1 of the Law Society of Ontario’s Rules of Professional Conduct provides that a lawyer shall not act or continue to act where there is a conflict of interest. In the case of a drafting lawyer representing a party in a will challenge for a will that they prepared, an argument could be raised that the drafting lawyer is in an inherent position of conflict, as the drafting lawyer may be unable to look out for the best interests of their client while at the same time looking out for their own interests when being called as a witness or producing their file. There is also the potentially awkward situation of the drafting lawyer having to call themselves as a witness, and the associated logistical quagmire of how the lawyer would put questions to themselves.
The issue of whether a drafting lawyer would be in a conflict of interest in representing a party in a will challenge was dealt with in Dale v. Prentice, 2015 ONSC 1611. In such a decision, the party challenging the validity of the will brought a motion to remove the drafting lawyer as the lawyer of record for the propounder of the will, alleging they were in a conflict of interest. The court ultimately agreed that the drafting lawyer was in a conflict of interest, and ordered that the drafting lawyer be removed as the lawyer of record. In coming to such a conclusion, the court states:
“There is a significant likelihood of a real conflict arising. Counsel for the estate is propounding a Will prepared by his office. The preparation and execution of Wills are legal services, reserved to those who are properly licensed to practise law. Counsel’s ability to objectively and independently assess the evidence will necessarily be affected by his interest in having his firm’s legal services found to have been properly provided.” [emphasis added]
Decisions such as Dale v. Prentice suggest that a lawyer may be unable to represent any party in a will challenge for a will that was prepared by their office as they may be in a conflict of interest. Should the circumstance arise where the drafting lawyer is retained to assist with the administration of the estate, and subsequent to being retained someone challenges the validity of the Will, it may be in the best interest of all parties for the drafting lawyer to indicate that they are no longer able to act in the matter due to the potential conflict, and suggest to their clients that they retain a new lawyer to represent them in the will challenge.
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A recent decision of the Saskatchewan Court of Queen’s Bench highlights the importance of “going big or going home” when challenging a Will.
In the decision of Kot v. Kot, 2018 SKQB 338 (CanLII), an application to revoke probate and allow a will challenge to proceed by the spouse of the deceased was dismissed on the basis of a lack of credible evidence sufficient to raise a triable issue.
There, the deceased died on September 15, 2015. He died leaving a will dated August 4, 2014. In his will, the deceased appointed his spouse and two of his brothers as estate trustees. He gave one of his brothers a right of first refusal to purchase some of the deceased’s farm land upon his death.
Probate of the will was granted, and the three estate trustees proceeded to administer the estate.
The spouse then commenced her application to challenge the will. She said that the deceased tore up his will (actually, a copy of it: the spouse had switched the original will with a copy, and gave evidence that the deceased thought he was tearing up and therefore revoking the original). She said that she told the estate lawyer of the revocation, but the estate lawyer told her that it was better to have a will than no will, and that the estate lawyer did not tell her that if there was no will, she would inherit the entire estate. She also later alleged that the will was the result of undue influence from the brothers.
The court dismissed the spouse’s application.
The court held that the delay in seeking to challenge the validity of the will was not fatal to the application. However, while the delay did not defeat the application, it was a relevant consideration, and suggested that her claims had little credibility. Further, the evidence of the estate lawyer did not support her claim that the will was torn up by the deceased.
The court also found that there was no evidence of undue influence.
Interestingly, the court did not discuss the application of any limitation period. The court relied upon the Ontario Court of Appeal decision of Neuberger Estate v. York in concluding that mere delay did not preclude the challenge. However, in Neuberger, the will challenge was brought within the two year limitation period. In Kot, the challenge was brought 4 ½ years after the deceased’s death.
Have a great weekend.