Rule 13.1 of the Rules of Civil Procedure (the “Rules”) specifies where proceedings (which includes applications and actions) are to be commenced.
In Piekut, the court determined that a codicil to a will was valid notwithstanding that the application was commenced more than two years after the applicant discovered the codicil’s existence. Justice Dietrich made this determination despite case law that stands for the proposition that a party seeking to challenge a will must do so within two years from the date of the deceased's death, subject to the discoverability rules in the Limitations Act.
When a will challenger has no evidence to support the challenge, what strategy can lawyers take to inexpensively defeat the will challenge, vacate the notice of objection and move forward with probate?
We have written two other case reviews concerning the decision in Rubner v. Bistricer. The first addressed the determination of the validity of a testamentary document while the testator was still alive and the second addressed with whether a letter was sufficient to create a trust. In this blog we are focusing on what appears to have been Brenda Bistricer’s driving motivation in taking certain positions.
The Rubner case is instructive for those dealing with elder issues, will drafting and the creation of trusts. Accordingly, we decided to write several blogs with a focus on how Justice Myers of the Ontario Superior Court of Justice dealt with these separate issues. This particular blog reviews how and why His Honour went about determining the validity of a will while the testator is still alive.
This case deals with an application where the executors sought advice from the court about a painting that was alleged to be part of the estate.
In this case the daughters of the deceased challenged their father’s will. He left the bulk of his estate to his common law wife. The daughters alleged that the common law wife exerted undue influence on their father and that coercion was the reason he changed his will.
The current system allows anyone who appears to have a financial interest in an estate to challenge a will for minimal costs by giving notice of their objection. All that is required is the filing of a one page document called a “notice of objection”. This is often a boiler plate document alleging that the will-maker did not have capacity, did not know or approve of the contents of a will or was unduly influenced. At this stage, no evidence has to be provided and the application for probate will be temporarily derailed.
In Ontario a person is entitled to change his/her mind and revoke his/her will. There are a number of ways to revoke a Will. One such way is for the testator to burn, tear up or otherwise destroy it or by having some other person do so in his or her presence and by his or her direction with the intention of revoking the Will. But, sometimes there is no witness or proof that any such destruction took place. That begs the question - what happens if after the testator dies no one can find the Will and no one has knowledge that it was destroyed?
In Canadian law there is a legal doctrine called “proprietary estoppel”. This doctrine will arise where the owner of land, let’s call him Albert, leads another person, Barbara, to believe that they will enjoy a benefit over Albert’s property, and in reliance on that belief, Barbara acts to her detriment to the knowledge of Albert, and Albert takes advantage of Barbara by denying Barbara the benefit at stake. While the concept may appear confusing at first, the Ontario Superior Court provides a clear illustration of how the doctrine works in Love v. Schumacher.