Estate Litigation Blog
timeline will challenge

What is the Limitation Period for Challenging a Will?

Leibel v. Leibel stands for the proposition that the two-year limitation period runs from the date of the testator’s death, subject to the discoverability principle. But what about section 16(1)(a) of the Limitations Act, 2002? That provision states that there is no limitation period in respect of a proceeding for a declaration, if no consequential relief is sought. This raises an important question: can a party avoid an expired limitation period by framing a claim as declaratory relief?

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Validate Last Will Testament

Validating Wills Under the SLRA

For a testamentary document to be valid, Ontario law used to insist on a regimen of full compliance with the formalities of execution. The document had to be signed or acknowledged in the presence of two or more witnesses and the witnesses had to subscribe the will in the presence of the testator. This landscape shifted on January 1, 2022 when Ontario introduced the substantial compliance regime.

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Requirements to Serve Beneficiaries when filing law suit against a deceased person in Ontario

Is Failure to Serve a Beneficiary Fatal to a Will Challenge?

An analysis of Rule 9.01(1) and (2)and Lev v. Lev. In estates and trusts related matters, both Ontario’s Rules of Civil Procedure and Manitoba’s Court of King's Bench Rules permit litigation being brought against a trustee without joining beneficiaries as parties subject to certain exceptions. In Manitoba, failure to join beneficiaries will be fatal to the attack on a trust. In Ontario, however, we could not find one case that addresses this issue. The purpose of this blog is to review the Manitoba case in question and assess the viability of such a defence to an attack on a testamentary document in Ontario.

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The Test to Appoint a Litigation Guardian

What test does the court apply when deciding if a person is under a disability that requires a litigation guardian? This question was addressed in 626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors[“Kagan”]. Its importance stems from the fact that the definition of capacity is often situation and statute specific. It’s also important because it reminds us that the rationale and threshold for compelling someone to undergo a medical examination in the context of a substitute decisions matter is very different than in the context of a Rule 7 motion.  Let’s start our discussion with the facts of the case.

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An analysis of Rule 9.01 and Dawson and Harris v. Dawson (Estate) and Dawson et al.

What if Someone Dies in the Middle of a Lawsuit?

What if the person you are suing dies before the lawsuit has been completed? The answer starts with Rules 11 and 9.01. We will be dealing with Rule 11 later in our series. For the purposes of this blog, it suffices to say that Rule 11 deals with the transfer of interest or liability to another party by virtue of assignment, bankruptcy, death or other means. When a party to a lawsuit dies, the proceeding is stayed. At that point, any interested person may file the material necessary for the registrar to issue an order to continue – reigniting the lawsuit.

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Do Conflicts of Interest Preclude a Party from Acting as Litigation Guardian?

Rule 7 of the Rules of Civil Procedure – R.R.O. 1990, Reg. 194 was designed to protect vulnerable incapable persons involved in litigation. Under that rule, when a party is under a disability and thereby incapable of advocating for him/herself, someone shall step into the incapable person’s shoes and become their litigation guardian to make decisions on their behalf.

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Minors, Litigation Guardians, and Limitation Periods

There is an interesting interplay between Rule 7.02(2) of the Rules of Civil Procedure and the Limitations Act, 2002. Historically, the legislature and courts suspended limitation periods for a plaintiff who was a minor until that minor reached the age of majority. But, section 9 of the Limitations Act 2002 allows a defendant to bring a motion to appoint a litigation guardian to represent a minor plaintiff and thereby trigger the start of the limitation period. The case of Siddiqui v. Saint Francis Xavier High School [Siddiqui] demonstrates how this situation can play out.

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The Attorney For Property shall act as Litigation Guardian Unless…

Rule 7.02(1.1)(b) of the RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194 provides that unless a court orders otherwise an attorney for property shall act as litigation guardian for a person under disability. This is understood to be a presumptive, but not conclusive, entitlement. Our review of Berkelhammer v. Berkelhammer Estate focuses on what, in this case, the court considered in exercising its discretion to remove the attorney for property in favour of the Public Guardian and Trustee.

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retracting disclaimer of gift

Retraction of Gift Disclaimer – There’s a Ketch

The Superior Court decision in Rubner v. Bistricer quoted from earlier case law and texts stating that: ““The law certainly is not so absurd as to force a man to take an estate against his will.” There is no authority to the effect that the disclaimer must take place in a court of record; it may be made by deed, or even by conduct. Prima facie, the disclaimer operates from the time of the testator's death and makes the gift void for certain purposes ab initio.” So we know that people can say no to a bequest - but what if they change their mind?

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