Tag: Will Challenge
Earlier this year, the Court of Queen’s Bench of Alberta directed that a party challenging a will may be able to obtain orders for disclosure before the Court determines whether the will must be proven in solemn form.
This case may be of interest in Ontario because the procedure for commencing a will challenge in Alberta and Ontario is relatively similar. If a party in either province wishes to challenge a will, that party must establish an evidentiary basis for doing so before a hearing will be ordered. In Ontario, the requirement to provide a “minimal evidentiary threshold” before a will must be proven in solemn form was reiterated by the Court of Appeal in Neuberger v. York, 2016 ONCA 191 (CanLII). The standard is worded differently in Alberta, where applicants must provide an evidentiary foundation to confirm that there is a “genuine issue to be tried” before the hearing of a will challenge will be ordered: see Quaintance v Quaintance (Estate), 2006 ABCA 47 (CanLII) and Logan Estate (Re), 2021 ABCA 6 (CanLII).
Evidence a party challenging a will in Alberta may obtain before a hearing is ordered:
In Gow Estate (Re), 2021 ABQB 305 (CanLII), the will dispute was between four of the deceased’s children. Two siblings were serving as the personal representatives of the estate, and two other siblings applied to challenge the deceased’s will on several bases, including undue influence. The personal representatives opposed the applicants’ request that the will be proven in solemn form.
The applicants also applied to the court for interim relief – an order that would permit them to question the personal representatives and obtain documentary disclosure, including the estate solicitors’ files, the deceased’s medical records and driver’s licence documents, previous wills, and other estate planning records, before the “threshold” application was heard. The personal representatives objected to the interim relief sought by the applicants on the basis that Alberta’s Surrogate Rules did not permit pre-application discovery and also argued that the testator’s privacy was to be respected unless the applicants proved that formal proof of the will was warranted in the circumstances.
Before the interim application was heard, the personal representatives also provided the applicant siblings with partial disclosure relating to the testator’s health, testamentary capacity and intentions, and estate planning, and also examined one of the applicant siblings in anticipation of the threshold application.
The interim application was heard by Justice Feth, who permitted both questioning and limited documentary disclosure, recognizing “the importance of early disclosure in surrogate disputes”. With respect to questioning, the Court confirmed that the personal representatives could be questioned “about their personal interactions with the testator during his lifetime, including their observations of his mental capacity and their involvement in his testamentary decision-making.” Justice Feth explained:
 Access to pre-application questioning advances procedural fairness since the Applicants are obligated to meet an evidentiary burden and obtain corroboration through material evidence from other sources. In meeting their onus, measured litigation procedures should not be foreclosed to them.
 Immunizing an adverse party from questioning is especially concerning when undue influence is raised. The living witness who is likely the most knowledgeable about the interactions with the testator would be hidden from the Court.
Justice Feth also observed that it would not be fair to permit the threshold application to be heard by the Court with only partial disclosure selected entirely by the personal representatives because of the potential for “a misleading presentation of the facts”.
Limited documentary disclosure of some of the deceased’s medical records and previous wills was also ordered in light of the partial disclosure already provided by the personal representatives. While Justice Feth acknowledged that individuals may have a significant privacy interest in their medical records, it was also recognized that such a privacy interest is not absolute and ordered the personal representatives to provide the applicant siblings with disclosure for the period during which the deceased’s testamentary capacity was in question.
Justice Feth acknowledged the potential for “[c]oncerns about fishing expeditions, the testator’s privacy interests, and excessive delay and expense occasioned by exuberant demands for disclosure” during the early stages of estate litigation, but held that those concerns could be managed by the Court rather than prohibiting early disclosure in surrogate proceedings.
Evidence a party challenging a will in Ontario may obtain before a hearing is ordered:
In comparison to Justice Feth’s decision, Ontario courts have in some recent instances been reluctant to provide documentary disclosure in will challenges during the preliminary stages of the litigation. In Seepa v Seepa, 2017 ONSC 5368 (CanLII), Justice Myers held that documentary disclosure should not occur until after a threshold will application has been granted. Recently, in McCormick v McCormick, 2021 ONSC 5177 (CanLII), Justice Wilcox described Justice Myers’ decision as follows:
 In Seepa, Meyers J. expanded on the policy considerations behind the minimum evidentiary threshold requirement. It was to protect from lengthy, intrusive, expensive documentary collection and investigation proceedings untailored to the needs of the individual case and from intrusion into a deceased’s privileged legal files and personal medical records. In the face of these, a litigant was not to be given tools such as documentary discovery that are otherwise ordinarily available to a civil litigant before the litigant has produced some evidentiary basis to proceed.
In keeping with the Court’s decision in Seepa, in Young v Prychitko, 2021 ONSC 3150 (CanLII), Justice George declined to order documentary disclosure in the context of a will challenge, holding that the Court would not entertain a fishing expedition and compel production of documents before the minimal evidentiary threshold had been met. The firm’s blog post about the Court’s decision in Young v Prychitko can be accessed here.
While document disclosure prior to a threshold application may have recently been discouraged, some Ontario decisions have instead permitted cross-examination on affidavit evidence as a next step, as noted in Justice Wilcox’s decision in McCormick. The Court even noted in Young v Prychitko that the parties would be able to cross-examine each other on their affidavit evidence before the threshold issue, in that case, was decided.
Having said that, the practice of permitting parties to cross-examine each other on affidavit evidence before documentary disclosure may not always be optimal. In Shapiro v Shapiro, 2021 ONSC 4501 (CanLII), for example, Justice Hurley noted that cross-examination on an affidavit before documentary discovery in that particular case was “unlikely to accomplish anything of real benefit” and likely “would only add to the legal costs and beget delay” – the very danger that Justice Myers indicated the minimum evidentiary threshold requirement was intended to avoid. The will threshold application was determined in Shapiro without any cross-examination.
In light of these recent decisions by Ontario and Alberta Courts in which we have seen two conflicting approaches in the disclosure of medical records and other documentary disclosure, the minimal evidentiary threshold issue should remain top of mind to lawyers assisting clients with the early steps of a will challenge.
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When parents are creating their Last Will and Testament, they often direct that assets are to be divided amongst their children. However, this is not always how it works, as the testator has the right to leave their estate to whomever they want unless they have dependents who must be financially taken care of.
Indeed, some very rich celebrities – Sting, Elton John, Mark Zuckerberg, Warren Buffet and others – reportedly have said that their children will not receive the bulk of their estates. Their reasons include giving them “some semblance of normality, some respect for money, some respect for work” and “huge sums of wealth … distorts anything they might do in creating their own path.”
You may not have multimillionaires as parents, but there is the chance that when they die, you will not be named as a beneficiary in the will. If that happens and you feel you are entitled to some portion of the estate, a legal challenge to the will can be mounted. But beware – the process will be difficult and the chances of success uncertain.
The first thing to keep in mind is that only a spouse or dependent children can contest a will that has disinherited them. You have to have a financial interest in the estate and must be able to show you were named in a prior will, or that the deceased had promised to take care of you after their passing.
If probate has not already been granted, you can file a Notice of Objection with the court registrar. If probate has been granted, then you have to bring a motion for the return of the certificate of appointment.
Before doing that, it is wise to discuss with legal counsel why you are objecting to the will. If your reasons are based on emotion rather than reason, you will likely be advised to walk away and accept the situation. The court has little tolerance for notices of objections based on frivolous claims, and you may end up having to pay the legal costs the estate incurred in defending against your claim.
You also have to consider if contesting the will makes financial sense. Does the potential gain outweigh the legal costs (not to mention the time, effort and emotional stress) the process may cause?
That being said, there are valid reasons for taking legal action. The two main ones are that there was a lack of testamentary capacity when the final Will and Testament was drawn up, or that the testator was subject to undue influence by someone. Other valid reasons for mounting these challenges include:
- the will is unsigned or not properly witnessed
- the testator was not aware of the full contents of their estate
- there are ambiguous terms in the will that are open to interpretation
- simple fraud is alleged
Any of these reasons are grounds for filing a Notice of Objection. If successful, the will may be declared invalid.
Cases that come before the court include instances where a person near the end of their life leaves their estate to a much younger person who was their caregiver or romantic partner. Family members who find themselves cut out of the inheritance have to prove that the new beneficiary exerted undue influence in the writing of the will.
That is difficult, as mental capacity is a fluid concept. A person may have the capacity to enter into a marriage, but be incapable of effectively managing their own financial affairs. As the population ages, with many people holding onto sizeable financial portfolios, we will likely see more of these predatory marriages in the future.
Challenging a will in court can be a costly, time-consuming and emotionally draining experience. Litigation can pit family members against each other, straining relationships in a time when they should be mourning. Even if they win, beneficiaries may have to wait for years as the legal process unfolds.
If you feel you have been unfairly denied an inheritance, you should speak to a wills and estates lawyer. While every case is fact-dependent, they can provide you with an informed opinion about your chances of success.
Thanks for reading, and have a great day.
This week on Hull on Estates, Paul Trudelle and Fred Tonelli discuss the decision and corresponding order in Morrish v Katona ONSC 3805, and review the threshold to challenge a will and compensation due to an examined drafting solicitor and his or her lawyer.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
The doctrine of righteousness is a historical concept that is interesting to consider in the context of estate litigation.
Apparently, it was first developed in the 1800s to protect will-makers from consequences of the actions of those attempting to gain a benefit from another’s Will, specifically through the exercise of undue influence.
The case law on this particular concept is quite sparse.
This doctrine was considered by the Supreme Court of Canada (“SCC”) in Riach v Ferris,  SCR 725 where the case of Barry v Butlin was reviewed. It was mentioned in passing by the British Columbia Supreme Court in Halliday v Halliday Estate, 2019 BCSC 554, without any significant commentary as to its effect or place in a Will challenge.
A more in-depth analysis of this doctrine, however, was provided by the Saskatchewan Court of Appeal (“SKCA”) in the decision of Karpinski v Zookewich Estate, 2018 SKCA 56.
The SKCA held that this doctrine may apply where a person, who is “instrumental” in the drafting of the will, also receives a benefit from the will greater than the other beneficiaries. In that case, there may be a requirement for such a recipient to prove the “righteousness” of the transaction.
The SKCA further noted that the SCC also stated that these rules of law apply to all circumstances that raise the “suspicion” of the Court and not only where a person who is instrumental in the drafting of the Will receives a superior benefit. According to the SKCA, this may suggest that this doctrine is only an example of the Court finding a certain kind of relationship to be a suspicious circumstance such that the burden of proof shifts to the propounder of the Will.
The SKCA’s comments are in contrast to John Poyser’s position set out in his book entitled “Capacity and Undue Influence” where he relays his views that the doctrine of righteousness is its own unique doctrine and ought not to be confused with the concept of suspicious circumstances.
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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!
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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!
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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.
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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.
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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).
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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.
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Suzana Popovic-Montag and Daniel Enright