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Estates - Wills - Challenging a Will

. Shannon v. Hrabovsky [limitations]

In Shannon v. Hrabovsky (Ont CA, 2023) the Court of Appeal considered limitations in a will-challenging estates context:
[19] In his reasons, the application judge concluded that Gayle’s application was not limitations-barred. He stated:
[W]hile the limitation period in respect of a will challenge is presumed to commence on the date of death of a testator for the purposes of s. 4 of the Act, the “discoverability principle” [in s. 5 of the Act] is not ousted if the presumption is rebutted.
....

[52] In my view, the application judge’s conclusion that the limitations clock only started to run after Gayle confirmed both the existence and the contents of the 2007 Will accords with the approach that was taken in the two cases that he considered in relation to this issue: Leibel v. Leibel, 2014 ONSC 4516, 2 E.T.R. (4th) 268, and Birtzu v. McCron, 2017 ONSC 1420, 24 E.T.R. (4th) 14.

[53] In Leibel, the motion judge’s conclusion that the applicant in that case “had the knowledge to commence a will challenge on or before July 31, 2011” was based in part on her finding of fact that the applicant had received copies of the disputed wills a few weeks earlier: see Leibel, at paras. 34, 39. Likewise, in Birtzu, at para. 50, the trial judge concluded that the applicants had sufficient knowledge to commence their claim once, knowing that the deceased suffered from dementia, they learned that the disputed will “denied them any gift”.

[54] Importantly, in Birtzu, as in the case at bar, a lawyer acting for one of the plaintiffs wrote a letter setting a deadline by which the defendant “was to turn over the estate assets to [the plaintiff] or face legal action”: see Birtzu, at para. 46. In concluding that the plaintiffs’ claim was statute-barred, the trial judge treated the limitations clock as starting to run on the deadline date that had been set in the plaintiff’s counsel’s letter, not on the date that this letter was sent: Birtzu, at para. 48. I agree that this approach makes sense, since if the defendant had capitulated to the plaintiff’s demands, there would have been no need for litigation.
. Bitaxis Estate v. Bitaxis

In Bitaxis Estate v. Bitaxis (Ont CA, 2023) the Court of Appeal dealt with a straightforward case that provides a useful demonstration of some of the process for objecting to a will:
[1] The appellant appeals the judgment of the application judge, vacating his Notice of Objection, dated July 2, 2021, in response to the respondent’s application for a Certificate of Appointment of Estate Trustee with a Will with respect to the Last Will and Testament of Theoni Bitaxis dated April 18, 2019 and Codicil dated July 2, 2019 (hereinafter the “2019 Will”) and ordering that the respondent be appointed as the sole Estate Trustee.

[2] The appellant argues that the application judge erred in concluding that he failed to adduce, or point to, some evidence which, if accepted, would call into question the validity of the 2019 Will and, as a result, vacating his Notice of Objection. He argues that the application judge did not appreciate that his role was simply that of gatekeeper, tasked with deciding whether the appellant should be given tools, such as documentary discovery, to challenge the validity of the 2019 Will. The appellant says that the reasoning of the application judge in distinguishing Stone v. Firestone, an unreported endorsement of Dietrich J. dated June 14, 2022, shows that the application judge did not properly apply the minimum evidentiary threshold in this case. As he did before the application judge, the appellant argues that the evidence in this case is stronger than the evidence in Stone.

[3] We are not persuaded that there is any basis for this court to interfere with the judgment of the application judge.

[4] In Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 88, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 207, this court held that an interested person must meet some minimal evidentiary threshold before a court will accede to a request that a testamentary instrument be proved. To meet the evidentiary threshold, the person seeking to challenge a will must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded: Neuberger, at para. 89.

[5] The application judge considered and applied Neuberger. He clearly appreciated that the purpose of the minimal evidentiary threshold was to determine whether the appellant was entitled to documentary discovery. His decision is entitled to deference: Johnson v. Johnson, 2022 ONCA 682, at paras. 15 and 20, leave to appeal to S.C.C. requested, 40477.

[6] The application judge considered all the evidence adduced by the appellant. He also considered Stone. He held that the evidence in that case, if accepted, would have called into question the validity of the will. In contrast, he held that the appellant’s evidence “does not suggest that Theoni may have lacked testamentary capacity, or that she was potentially subject to undue influence, when the 2019 Will was executed.”

[7] The appellant points to no palpable and overriding error or error in principle. Contrary to his submissions, he asks this court to reweigh the evidence before the application judge and come to a different conclusion.
. Di Nunzio v. Di Nunzio

In Di Nunzio v. Di Nunzio (Ont CA, 2022) the Court of Appeal cites a leading case on challenging a will:
[5] In substance, the application judge correctly applied the applicable legal principles in Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, ...



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Last modified: 21-02-24
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