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nuisance claim in estate law
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The Estate Nuisance Claim

A Case review of Re: Lawrence1

Why are there so many nuisance claims in Estate Litigation? What strategies should lawyers consider when dealing with a nuisance claim?

Motivation to Commence a Nuisance Claim.

Perhaps it’s because it costs so little money to throw a monkey wrench into an executor’s application for a Certificate of Appointment of Estate Trustee (Probate). For $150, a will challenger can file a notice of objection, which is typically a boilerplate document document setting out the nature of the will challenger’s financial interest and the grounds for the objection. As long as the objector follows the necessary, procedural steps, as a result of filing the notice of objection the applicant for a certificate of appointment of estate trustee cannot obtain probate without the issues in dispute being litigated or resolved.2

The motivation for objecting may be Machiavellian. The hope might be that the executor might be willing to pay the objector some money to expedite probate and allow the estate to be administered. The risk and cost to the objector is small and the upside can be very real.

The notice of objection is a one page document that is often filed in a boiler plate fashion.3 Regardless of the facts, the will challenger often suggests that the deceased lacked testamentary capacity, was unduly influenced and/or did not know or approve of the contents of the testamentary document in question. The notice of objection need not be supported by evidence, allegations are enough.

But doesn’t the objector have to pay his/her lawyer a lot of money for a will challenge?

A will challenge is expensive. But, the first step is not. The reality is that the delay caused by filing a notice of objection is a simple and inexpensive way to derail the administration of the Estate. It forces the estate trustee to bring a motion for directions, which is expensive and cumbersome. This is sometimes exacerbated by a practice among some in the estates bar to take cases of questionable merit on contingency knowing that an executor will pay something to avoid the delay and expense brought on by a will challenge. A client who pays little or nothing at the outset and only pays upon success is incentivized to be intransigent. Lawyers who take such cases on contingency might say that doing so serves the noble goal of increasing access to justice. There certainly are meritorious cases that would not be pursued if lawyers did not take on the files on a contingency basis. On the other hand, it sometimes leads to fishing expeditions and graymail.

So this begs the question. 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?

One successful strategy to deal with Nuisance Claims – Re. Lawrence

It is possible, and our office has done it, to bring a motion under Rule 75.06 for directions and successfully obtain a court order to vacate a notice of objection. If you are interested in this case you can access the blog entitled Court Ordered Withdrawal of Notice of Objection.

There is a similar reported decision in Re. Lawrence. We should say at the outset the court made no express comment on the propriety of this will challengers’ motivation. We do not know whether the will challengers paid a fee for service or had a contingency fee arrangement. What is clear is that they filed a notice of objection and the court vacated it, thereby avoiding a costly trial.

In this case, the testator’s first wife predeceased him. After his first wife’s death the testator changed. He became distant from their two children. He spent his time communicating with overseas rogues and accessing the internet for pornography. The testator resisted and resented his children’s’ efforts to intervene. He made it very clear that he wanted to be left alone. His son thought he was delusional4, but the court held that the evidence was just as consistent with the testator being a weak person with bad judgment.

The testator remarried. His second wife was a woman 27 years younger than him. He hired a lawyer to transfer title of his home to himself and his new wife in joint tenancy. As a result, upon the testator’s demise, his home passed to his second wife by right of survivorship. He had a will naming his second wife as executor and splitting the residue between his second wife (40%) and his two children 60%.

The two adult children filed a notice of objection. Their basis for the objection was not supported by any evidence on the motion for direction, but the children did refer to their belief that their father was delusional. For the reader’s benefit, the seminal case of Banks v. Goodfellow addressed the issue of testamentary capacity. It looked at various factors including a requirement that no insane delusion influence the testator’s will in disposing of the property and bringing about a disposal which, if the mind had been sound, would not have been made.5

The lawyer’s strategy

The lawyer for the named executrix brought a motion for directions under rule 75.06. The court decided that “….a certificate of appointment as estate trustee with a will shall issue to the Applicant and that the residue of the estate shall be distributed according to the terms of the will after payment of the debts…” With respect to the stated delusion, the judge stated that the evidence of the delusion was equally “…consistent with him simply having weak character and bad judgment, together with a certain degree of self-absorption. The transfer of property and the will were accomplished under the supervision of a lawyer, who found no cause for concern. The marriage was performed by an Anglican chaplain who issued a certificate.”

The judge, on the motion for directions, decided to vacate the notice of objection and order that the wife should be granted a certificate of appointment. In his view, the transfer of property was done with proper legal advice and the marriage was performed by an Anglican chaplain who issued a certificate. Was it a marriage of convenience? Perhaps. But, the judge found that it was a relationship of mutual benefit. The new wife took care of the testator and he was happier with the company.

Arguably, the children might have pointed out that without the proper document disclosure there was no chance for them to garner the evidence to prove their case. A similar argument has been made many times. However, there is a stream of cases recently that has dismissed that argument. The rationale is that without some evidentiary basis no fishing expeditions should be permitted.6

So what is the takeaway from this case? In her blog on the case, Marian Passmore of WEL Partners suggested,

“Parties to estate litigation must be careful to not file Notices of Objection that are based on suspicions or opinions without corroborating evidence. Otherwise, they risk having costs awarded against them and findings of fact made by a judge that may make advancing separate claims more difficult.”7

In our view this case underscores the need to lead supporting evidence by an objector. On the other side, when acting for a propounder of the will, if there is no evidence offered to support the will challenge then it may be that you can avoid the costs and delay of a will challenge by moving for directions and asking to vacate the notice of objection.

Footnotes
  1.   Re: Lawrence, 2019 ONSC 373 (CanLII)
     
  2.   See “Stopping Probate” available online.
     
  3.   See Smith Estate v. Rotstein 2010 CarswellOnt 2282, 2010 ONSC 2117, (2010) O.J. No. 1527, 187 A.C.W.S. (3d) 900, 56 E.T.R. (3d) 216 at paragraph 41 & 42

    41 In the present case Himel J. permitted Mr. Smith’s summary judgment motion to proceed before Ms. Rotstein moved for an order giving directions. As a result, the only “pleading” of the objector, so to speak, is her notice of objection. Yet the notice of objection in this case provides the court with little guidance about the real nature of the reasons the objector challenges the issuance of a certificate of appointment. In saying that I am not being critical of counsel who drafted the notice; it contains the standard “boilerplate” one sees in typical notices of objection. A practice has developed amongst the Estates Bar of filing boilerplate notices of objection; I think it is an unhealthy practice. Form 75.1, the Notice of Objection, requires an objector to indicate her reason for objecting to the issuance of a certificate and continues: “such as lack of testamentary capacity, undue influence or unfitness to act as estate trustee”. Although such language simply illustrates the types of objections which can be made, in practice objectors tend to go no further than to include some, or all, of those general objections in their notice.

    42 Use of such boilerplate, in my view, is inadequate and does not comply with the requirement of Rule 75.03(1) to state the “nature…of the objection”. For example, for the objector in the present case to state in her notice that one of the reasons for opposing the issuance of a certificate is that “the deceased was subjected to undue influence” is, with respect, meaningless. Undue influence by whom? When? By what conduct? Answers to those questions would more properly flesh out the “reason” for the objection, as required by Form 75.1 and, as well, identify the “claim” in respect of which summary judgment might be sought. While I will not take into account on this motion the vagueness of the reasons set out by Ms. Rotstein in her notices of objection, I strongly anticipate that in future summary judgment motions under New Rule 20 the failure of an objector to provide detailed reasons for his or her objection may well operate as a factor in a court’s assessment of whether a genuine issue requiring a trial exits.
     

  4.   A testamentary decision rooted in a delusion constitutes a ground to set aside a testamentary document.
     
  5.   See Insane Delusions – Has the Test Been Expanded
     
  6.   See Smith Estate v. Rotstein, 106 OR (3d) 161; 336 DLR (4th) 112; 281 OAC 30; 68 ETR (3d) 182; (2011) CarswellOnt 5677; (2011) OJ No 3075 (QL); 203 ACWS (3d) 898 2011 ONCA 491 (CanLII),

    (25) Counsel for the appellant describes the underlying purpose of the rule as follows:
    The rationale for the rule remains persuasive today. A grant of probate sets up a property right in the assets of the estate in favour of the executor. All the world must have confidence in transacting with the executor that he or she has the right to deal with the property of the estate. This achieves transactional certainty. In contrast, admitting some, but not all, documents to probate may undermine this certainty. Second, the grant of probate allows the executor to be appointed and thus creates the obligation that he or she takes up. Granting probate in respect of some, but not all, documents before the court can result in a weak quality of the grant, especially as one document may revoke, limit or otherwise nullify another. It may make the executor’s duties impossible to ascertain. The rationale for the General Rule thus continues to operate.
    (26) Applying the rationale for the rule, as articulated by counsel for the appellant, I can find nothing in the reasons for judgment of the motion judge that offends the rationale. There is nothing, in the circumstances of this case, which would undermine the confidence of anyone dealing with the executor concerning the property of the estate. There is nothing in either the third codicil or the fourth codicil that weakens the grant of probate in respect of the will or its first two codicils.

    Also see What is the minimal evidentiary threshold in Will Challenges?-The Ripple effect of Neuberger Estate v. York
     

  7.   http://welpartners.com/blog/2019/02/a-cautionary-tale-when-objecting-to-an-appointment-of-estate-trustee-with-a-will/
     

Gregory Sidlofsky and David Wagner

The authors of this blog are Gregory Sidlofsky and David Wagner .

Gregory is a Certified Specialist in Litigation by The Law Society of Ontario and partner at Wagner Sidlofsky LLP. David is a member of the firm’s Estate and Commercial Litigation Groups. He received his TEP designation from STEP and he deals with will challenges, dependants support, guardianship and applications to compel an accounting.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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