Tag: Will Challenge

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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24 May

A successful case of circumstantial evidence proving undue influence

Natalia R. Angelini Litigation, Uncategorized, Wills Tags: , , 0 Comments

Notoriously tough to prove is the allegation of a testator being unduly influenced to make a will. The burden of proof lies with the objector, and corroborating evidence is required to discharge the evidentiary obligation.

Notwithstanding the difficulty one faces to establish undue influence, it is frequently a ground of attack in will challenge cases, often coupled with an allegation of lack of testamentary capacity. In Kozak Estate (Re), it was rather unusually the sole ground of attack, and it was successful.

The facts in brief are that late in life the testator met and fell in love with a much younger woman, and soon after made real property transactions and two wills favoring her, with the latter will made in contemplation of marriage (which marriage never happened). The testator’s sister and beneficiary under a prior will challenged the wills on the ground of undue influence.

The Court reviewed the law on the question, and in so doing highlighted that circumstantial evidence can be used to establish undue influence, with the types of relevant circumstances including:

  • the increasing isolation of the testator including a move from his home to a new city which increased the respondent’s control over him;
  • the testator’s dependence on the respondent;
  • substantial pre-death transfer of wealth from the testator to the respondent;
  • the testator’s expressed yet apparently unfounded concerns that he was running out of money;
  • the testator’s failure to provide a reason or an explanation for leaving his entire estate to the respondent and excluding family members who would expect to inherit; and
  • documented statements that the testator was afraid of the respondent.

The Court viewed the evidence of the propounder as having many inconsistencies, contradictions and unbelievable elements. In consequence, it did not rely on her testimony at all. No such credibility problems arose respecting the evidence of the objector’s witnesses.

The Court went on to assess and conclude that the objector had established undue influence.  Among the critical supportive findings was that the propounder used the promise of marriage to control and manipulate the testator into providing economic benefits to her.  Further essential indicia of manipulation were the isolation of the testator from friends and family and a change in the testator’s personality.

Pursuing this avenue to invalidate a will is no easy feat, particularly without direct evidence.  What does not come as a surprise to me, however, is that the outcome in this case largely hinged on the credibility findings of the witnesses.

Thanks for reading and have a great day,

Natalia R. Angelini

Some other blogs on the issue that may be of interest are:

When Does the Presumption of Undue Influence Arise?

Undue Influence Revisted

Vanier v Vanier: Power of Attorney Disputes, Undue Influence, and Losing Sight of a Donor’s Best Interests

03 Oct

Hull on Estates #530 -Minimal Evidentiary Threshold in Will Challenges

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

In this week’s episode Paul Trudelle and Jonathon Kappy discuss a possible culture shift in the courts of probate, and the minimal evidentiary threshold required to proceed with a will challenge as articulated in Seepa v. Seepa, 2017 ONSC 5368.

You can read more about this decision on our blog here.

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 Jonathon Kappy.

30 Jan

A Novel Argument by an Adopted Child in British Columbia

Ian Hull Beneficiary Designations, Estate & Trust, Estate Planning, General Interest, In the News, Litigation, News & Events, Wills Tags: , , , , , , , 0 Comments

As societal norms are continuously changing and evolving, there has been a change in attitudes toward the relationship between adopted children and their biological parents. Today, society encourages adopted children and their birth parents to re-establish a relationship. For example, we have previously blogged on a change of the law in Saskatchewan, which provides for an adult adopted child to reconnect with their birth parents.

In Ontario, the legal status of adopted children is governed by the Child and Family Services Act (the “CFSA”). Section 158(2) of the CFSA provides that, upon an adoption order being granted, the adopted child becomes the (legal) child of the adoptive parent and ceases to be the child of the person who was his or her parent before the adoption order was granted. Pursuant to this statute, once a child is adopted, they are not entitled to their birth parent’s estate unless specifically provided for in the birth parent’s will.

Furthermore, in Ontario, there are no direct provisions governing a testator’s wishes in distributing their property. There is no requirement that all children must be treated equally, or that an individual must leave a part of their estate to their children through a testamentary document. Statutory protection does exist, for dependants, however, under Part V of the Succession Law Reform Act.

In contrast, the law in British Columbia provides that the Court has discretion to vary a will to remedy disinheritance of a child. Pursuant to s. 60 of the Wills, Estates and Succession Act (“WESA”), a parent must make adequate provision for their children, and if the court does not find a testamentary division among the children to be equitable, the court can intervene.

A recent case out of British Columbia considered a novel argument: does the receipt of a benefit under a birth parent’s will entitle an adopted child to argue for a greater share of the estate under section 60 of the WESA?

In the Boer v Mikaloff, 2017 BCSC 21, Mr. Boer was legally adopted as a baby to an adoptive family. He became reunited with his birth mother around the age of thirty, and in his birth mother’s last will and testament, he received a portion of her estate. Mr. Boer challenged his birth mother’s last will and testament in court, arguing that pursuant to s. 60 of the WESA, he was not given an equitable share of his mother’s estate compared to his mother’s other children.

The court held that Mr. Boer was not entitled to an equitable share, as he was not legally considered to be his birth mother’s child. The court held that section 3(2)(a) of the WESA does not allow an adopted child to manipulate a bequest by the child’s pre-adopted parent into a s. 60 claim and applied the case of Canada Trustco Mortgage Co. v Canada, 2005 SCC 54, to uphold that the text, context and purpose of the statute in this regard was clear.

Thanks for reading,

Ian M. Hull

More Articles You Might be Interested In

Can you be adopted as an adult?

Do adopted children still receive entitlement to their birth parent’s estate?

Can you be adopted into a trust?

 

 

 

10 Jan

Motion for Directions – What Evidence Will Suffice?

Natalia R. Angelini Litigation, Wills Tags: , , , 0 Comments

In W. (W.) v Y. (Y.), the testator’s holograph will gifted the entire estate to his second wife, excluding his daughter and son from his first marriage.   The daughter commenced a will challenge and brought a motion for directions pursuant to Rule 75.06 of the Rules of Civil Procedure.  The respondent second spouse opposed the motion.  She sought to have the will challenge dismissed on the grounds that insufficient evidence had been presented to support an inference that the claim should be heard.

A. Gilmore J. heard the motion, examined the issues and made two key rulings:

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  1. Financial Interest – Rule 75.06 allows any person who “appears to have a financial interest in an estate” to apply for directions as to the procedure for bringing a matter before the court.  Justice Gilmore concluded that it would be inappropriate at this early stage to determine that the applicant has no financial interest.  The threshold is a low one, such that an objector need not prove that she has a financial interest.  In any event, the possibility of an intestacy should the will challenge be successful was sufficient to warrant the court’s involvement.
  1. Suspicious Circumstances – The deceased suffered an aggressive form of brain cancer that his daughter alleged caused cognitive impairments. The evidence adduced raised questions as to (i) the issue of capacity (echoed by Dr. Kenneth Shulman), and (ii) the prospect that certain portions of the will may offend public policy.  Given the wording of the offending provisions, notably described as “disconcerting”, this issue was also linked to that of capacity.  Gilmore J. ruled that it was not for the court to decide at the directions’ stage as to whether there are suspicious circumstances, but rather whether there is some evidence that would support a trial judge’s finding of suspicious circumstances in order to shift the burden to the propounder to prove capacity.   The evidence in this case satisfied this requirement.

This decision reminds us that a motion for directions is often a preliminary procedural step in estate litigation.  The court does not require conclusive evidence but only sufficient evidence to support an inference that the claims raise a genuine issue.  Opposing such a motion in an attempt to terminate the proceeding as a whole will not often be successful.

Thanks for reading and have a great day,

Natalia Angelini

You may also be interested in the following blog posts:

Motions in Estates Litigation: Longer Than You Think

Short Circuiting the Frivolous Will Challenge

Will Challenges: How Much Evidence is Needed to Start

17 Nov

Proving a Will Executed Under Suspicious Circumstances

Nick Esterbauer Litigation, Wills Tags: , , , , , , 0 Comments

A couple of weeks ago, Jonathon Kappy and I podcasted on a recent decision of the Manitoba Court of Queen’s Bench, which raises the issues of knowledge and approval and suspicious circumstances, and which provides an effective overview of the shifting evidentiary burdens within the context of a will challenge.

As many of our readers may already be aware, if a last will and testament or other testamentary document is executed in compliance with the formal requirements (that is, it is executed by the testator, duly witnessed, and testamentary in nature), it is presumed to be valid. However, if a party challenges the validity of a will and is able to establish that its execution was surrounded by suspicious circumstances, the presumption that the will is valid not longer applies, and the burden of proving the will shifts to the person asserting the validity of the document (its propounder).  Even if suspicious circumstances cannot be established, the challenger may seek to have a will proved in solemn form by the propounder.  In order to prove a will in solemn form, the propounder need only provide basic evidence in support of the due execution of the will and the testamentary capacity of the testator.  If the Court accepts that suspicious circumstances existed at the time of the execution of the will, the evidentiary burden on the propounder can become relatively onerous.

A testamentary document surrounded by suspicious circumstances
“If a last will and testament or other testamentary document is executed in compliance with the formal requirements (that is, it is executed by the testator, duly witnessed, and testamentary in nature), it is presumed to be valid.”

In the recent Manitoba case of Garwood v. Garwood Estate, 2016 MBQB 113, 2016 CarswellMan 198, after the will had been proved in solemn form, Justice Bond reviewed the circumstances at hand in determining that they were suspicious and that the will, accordingly, needed to be proved by the propounder to be valid on a balance of probabilities.  However, the Court considered the suspiciousness of the circumstances in determining the strength of the evidence in support of the validity of the will that would be required.  Justice Bond found that, although the test for suspicious circumstances had been met (the drafting solicitor’s notes were sparse and his testimony was not found to be credible, the testator had been legally blind and incapable of reading the will herself, suggesting that she may not have had knowledge of and approved of the contents of the will, etc.), the circumstances were not so suspicious as to require the propounder to provide compelling evidence in support of the validity of the will.  The Court was satisfied that the will was valid simply on the basis of the fact that the will had been prepared by a lawyer in accordance with the testator’s instructions, none of the major beneficiaries were involved in the testator’s estate planning, and the lack of evidence supporting the allegations that the will was procured by undue influence and/or that the testator was mentally incapable at the relevant time.

Thank you for reading.

Nick Esterbauer

01 Nov

Hull on Estates #491 – Knowledge, Approval, and Evidentiary Burdens

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, Wills Tags: , , , , , , 0 Comments

This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the recent decision of the Manitoba Court of Queen’s Bench in Garwood v. Garwood Estate, 2016 MBQB 113, 19 E.T.R. (4th) 55, which raises issues of knowledge and approval, suspicious circumstances, and shifting evidentiary presumptions within the context of 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 Jonathon Kappy.

Click here for more information on Nick Esterbauer.

25 Oct

Hull on Estates #490 – Costs on a Will Challenge

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, Wills Tags: , , , , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Stuart Clark discuss the recent decision of Lavoie v. Trudel, 2016 ONSC 4141 (http://bit.ly/2dAwIpI), costs reported at 2016 ONSC 4769, and the circumstance in which the court ordered all parties to bear their own costs in a will challenge notwithstanding that the challenge was not successful.

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 Stuart Clark.

24 May

Testamentary Freedom Reconsidered

Noah Weisberg Ethical Issues, In the News, Wills Tags: , , , , , , , , , 0 Comments

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A recent case arising from British Columbia addresses whether a deceased parent is able to disinherit their child as a result of their sexual orientation.

As outlined in the recent National Post article, found here, a daughter has commenced a claim against her father’s estate on the basis that she was left out of the Will because she is in a lesbian relationship.  Specifically, the father’s Will leaves the entirety of his estate to his other children, and nothing to the disappointed daughter.

The disappointed daughter alleges that her parents never accepted her sexual orientation and isolated themselves with her and her long-time partner.  For example, the parents did not attend their daughter’s wedding.  Apparently, this is the basis for the disinheritance.

Interestingly, this is not the first time the BC Courts have been required to address sexual orientation in Wills.  In the 2006 BCSC decision of Peden v Peden, Justice Groves struck down a Will where a deceased father failed to approve of his son’s homosexuality on the basis that, “…homosexuality is not a factor in today’s society justifying a judicious parent disinheriting or limiting benefits to his child”.

Although, the laws in BC and Ontario are different with respect to the requirement of a testator to make adequate provision for spouses and children, given the recent decision of the Ontario Court of Appeal in BMO v Spence, it will be interesting to follow the applicability of sexual orientation to challenging an Ontario Will.

Noah Weisberg

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