Evaluating whether a limitation period may apply to prevent a party from pursuing their claim involves a two-stage analysis. First, the court must determine when a claim was “discovered”. Second the court will determine whether the applicant/plaintiff commenced a “proceeding” within the required time period.
Netflix’s recent hit docuseries, “Tiger King: Murder, Mayhem, and Madness”, chronicles the true story of the self-professed “Tiger King”, Joe Maldonado-Passage, also known as “Joe Exotic”. Joe was an eccentric private zookeeper, country music singer, and one-time candidate for Governor of Oklahoma who is currently serving a 22 year federal prison sentence for hiring a hitman to murder his rival, Carole Baskin, as well as other wildlife-related offences. Believe it or not, this bizarre story from the big-cat world raises legal issues pertaining to the law of estates.
An individual who seeks to have a will admitted to probate begins proceedings by applying for a certificate of appointment of estate trustee with a will. A person opposed to the will being admitted to probate need only file an objection (or a caveat as it is still called in some provinces).
A fundamental proposition of the common law with its own impressive Latin maxim (Nemo dat quod non habet) is that one cannot pass title to property one doesn’t own.
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.