Tag: Will Challenge

04 Oct

Another Will Challenge Threshold Case

Hull & Hull LLP Estate & Trust, Estate Litigation, Estate Planning, Trustees, Uncategorized, Wills Tags: 0 Comments

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.

Paul Trudelle

21 May

Hull on Estates #572 – Will Challenges and Mistake of Fact

76admin Hull on Estate and Succession Planning, Podcasts, Show Notes Tags: , , , , , 0 Comments

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 webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Paul Trudelle.

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23 Apr

Hull on Estates #570 – Drafting Solicitors and Will Challenges

76admin Hull on Estate and Succession Planning, Podcasts, Show Notes Tags: , , , , , , 0 Comments

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 webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

Click here for more information on Sydney Osmar.

22 Apr

Ante-Mortem Probate: What’s That All About?

Kira Domratchev Estate & Trust, Estate Planning, General Interest, Litigation, Wills Tags: , , , , 0 Comments

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.

Thanks for reading!

Kira Domratchev

Find this post interesting? Please consider these other related posts:

Probate and Wills: What About Electronic Wills?

The High Cost of Probate

When is Probate of a Will Required in Ontario?

11 Apr

Should the drafting lawyer represent the estate in a will challenge?

Stuart Clark Estate Litigation Tags: , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

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.

Thank you for reading.

Stuart Clark

01 Mar

Put Up or Shut Up: Leading Trump When Challenging a Will

Paul Emile Trudelle Estate & Trust, Estate Planning, Trustees, Uncategorized, Wills Tags: , , 0 Comments

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.

Paul Trudelle

19 Feb

The Latest ONCA Pronouncement on Will Challenges

Doreen So Capacity, Estate & Trust, Litigation, Uncategorized, Wills Tags: , , , 0 Comments

 

Another will challenge was before the Court of Appeal this month on February 5, 2019.  Reasons for the panel, comprised of Pepall, Trotter, and Harvison Young JJ.A., were released in writing on February 13th.  Quaggiotto v. Quaggiotto, 2019 ONCA 107, can be found here.

The issue of validity was solely focused on a codicil that was executed by Maria Quaggiotto when she was 87 years old.  The codicil left the residue of her estate to one son, Livio, while her will had previously left an equal division of the residue to both of her sons, Livio and Franco.

After a 10 day trial, Justice Rogin found that the codicil was valid.

On appeal, the challenger Franco sought to overturn various findings of fact and findings of mixed fact and law.

Ultimately, the panel upheld the decision of Justice Rogin.

The panel reaffirmed the Court of Appeal’s decision in the Orfus Estate with respect to the notion that testators are not required to have “an encyclopedic knowledge” of their assets in order to satisfy the test for testamentary capacity.

Interestingly enough, the Court of Appeal found that the trial judge was sufficiently alive to corroboration requirements of section 13 of the Ontario Evidence Act even though Justice Rogin’s decision would appear to have erroneously cited section 13 of the Ontario Estates Act for this important statutory requirement.  The adage “form over substance” did not hold water in this appeal given that the actual legal requirement was adequately considered by Justice Rogin.

Thanks for reading!

Doreen So

11 Dec

Hull on Estates #561 – The Question of a Limitation Period in a Will Challenge

76admin Estate & Trust, Hull on Estates, Litigation, Podcasts Tags: , , , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Kira Domratchev discuss the decision in Shannon v Hrabovsky, 2018 ONSC 6593, and the question of a limitation period in a Will challenge.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

Click here for more information on Kira Domratchev.

13 Nov

Will Challenges and Limitation Periods

Sayuri Kagami Litigation, Wills Tags: , , , 0 Comments

When does the limitation period start running for a challenge to the validity of a Will? A recent decision at the Superior Court of Justice dealt with this very question and found that the limitation period may continue to run even after two years from the date of death of the testator.

In the decision of Shannon v Hrabovsky,  2018 ONSC 6593, the testator prepared a will in 2006 which he provided to his daughter following its execution. However, the testator subsequently executed a will in 2007 (the “2007 Will”) which essentially disinherited his daughter to the benefit of his son. The daughter was not provided with a copy of this will, but the daughter was aware that the testator attended a lawyer’s office in 2007 and signed something. The testator died on November 15, 2014 and the daughter was provided a copy of the 2007 Will in January 2015 when her brother and uncle applied for a Certificate of Appointment of Estate Trustee under the 2007 Will.

The daughter commenced a challenge to the validity of the Will on December 23, 2016. This claim was commenced more than two years after the testator’s date of death, but less than two years from when the daughter received a copy of the 2007 Will in January 2015. As a preliminary issue, Justice Wilton-Siegel determined the issue of whether the limitation period for bringing a challenge to the validity of the 2007 Will had expired.

In particular, Justice Wilton-Siegal examined the issue of whether the discoverability principle applies in the case of will challenges. Under the Limitations Act, 2002, SO 2002, c 24, sched B,  a claim generally may not be commenced after the second anniversary of the day on which the claim is discovered. Section 5(1) of that act sets out that:

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

Justice Wilton-Siegel referred to the decision in Leibel v Leibel, 2014 ONSC 4516 where the Court found that as a will speaks from the date of death, the limitation period begins running from the date of death. In Shannon v Hrabovsky, it appears that the respondents attempted to argue that the discoverability principle did not apply and that a will challenge can only be brought within two years of the date of death. Justice Wilton-Siegel found, however, that the discoverability principle continues to apply to will challenges and that Leibel v Leibel was not to be taken as meaning that such a principle did not apply.

In the circumstances of the case, Justice Wilton-Siegel found that the will challenge was not statute-barred as the daughter had not discovered the existence of the 2007 Will until she was provided with a copy in January 2015.

The circumstances of each case are unique and while some might be concerned that this case opens up potential claims against the validity of a Will long after a testator has passed away, it is important to remember that the Court will examine the discoverability principle with respect to whether a reasonable person ought to have discovered the claim.

Thanks for reading!

Sayuri Kagami

06 Jul

Testamentary Capacity: Considering Contextual Factors

Rebecca Rauws Capacity, Wills Tags: , , , , , , , , , , 0 Comments

A recent decision from the Court of Appeal for Ontario, ­­­­Dujardin v Dujardin, 2018 ONCA 597, considers an appeal with respect to a Will challenge on the basis that the testator lacked testamentary capacity. The testator in this situation was a frequent consumer of alcohol. Despite what the trial judge called the testator’s “chronic alcoholism”, it seemed as though he was able to function normally on a day-to-day basis, including in business dealings relating to a family farm owned by the testator and his brother. Following the testator’s death, his wife disputed his Will, under which she received no benefit.

Recently, my colleagues, Noah Weisberg and Garrett Horrocks, discussed whether the classic test for testamentary capacity as set out in Banks v Goodfellow should be updated, and a new test as proposed in an article in the Canadian Bar Review, Vol 95 No. 1 (2017), Banks v Goodfellow (1870): Time to Update the Test for Testamentary Capacity.

The article opines that the context of the testator, including, for instance, family dynamics, should be incorporated explicitly into the test for testamentary capacity. This means that we would be asking the question: “can this particular person, with his or her particular mental abilities, in this particular situation, make this particular Will, at this particular time?”, rather than “can this testator make a Will?”

I thought the suggestions in the article were interesting when considering the facts of the Dujardin decision, and the findings of the trial judge. It seems as though the lower court took into account a number of contextual factors in applying the Banks v Goodfellow test, ultimately leading to a conclusion that the testator did possess the requisite testamentary capacity, a conclusion which was upheld by the Court of Appeal.

In particular, some of the interesting contextual factors included:

  • the history of the testator and his brother’s ownership and operation of the family farm, and the brothers’ consistent desires to leave their respective shares of the farm to each other upon their death;
  • prior mirror Wills executed by the brothers 13 years before the testator’s death, which reflected the same intention as the later Will that was being challenged (the testator’s prior will was revoked in 2000 when he married his wife); and
  • the testator’s relationship dynamic with his wife, with whom it appeared he was not close, and the provision that he made for her outside of his Will.

In particular, the Court of Appeal commented that “[g]enerally, the manner in which [the testator] disposed of his property made sense in the context of his life and familial relationships.”

Had the trial judge not considered the various contextual factors, it’s possible she could have arrived at a different conclusion. Subject to the medical evidence, given that the testator suffered from alcoholism, it may have been open to the court to conclude that this condition had, in fact, affected the testator’s cognition.

In any event, it is interesting to see a practical example of the ideas put forth in the article mentioned above, and to consider how the suggestions of the authors may come into play in real-world situations.

Thanks for reading,

Rebecca Rauws

 

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