In a decision released March 8, 2016 – Neuberger v. York,
2016 ONCA 191 – the Ontario Court of Appeal rejected the argument that Ontario's Rules
of Civil Procedure (“Rules”) give a person the right to require that a will be proved "in solemn form" before it is subject to probate.
Chaim and Sara Neuberger had two daughters – Edie and
Myra. Chaim's long-standing intention was to provide for his
daughters equally on his death. Chaim died on September 25, 2012
at age 86. Sara predeceased him. He left a real estate empire
estimated to be worth over $100 million. Edie and Myra survived him. Each daughter has adult children.
Chaim executed primary and secondary wills in 2004
and again in 2010. Both sets of wills left his estate to his two
daughters and their children. However, the sets of wills differed in one
significant way which allegedly resulted in Myra’s share exceeding Edie’s share
by approximately $13 million. As a result of this unequal sharing, which
was contrary to Chaim's stated intention, Edie and her son Adam
commenced separate actions challenging the 2010 wills.
Justice Susan Greer of the Ontario Superior Court of Justice dismissed the will challenges on a motion on the basis that they
were barred by the equitable doctrines of estoppel by representation and
estoppel by convention. Justice Greer held that Edie was estopped from
challenging the validity of the 2010 wills because she delayed in bringing her
challenge and had no reasonable explanation for the delay. Justice Greer also held that the
actions that Edie had taken as estate trustee and the prejudice that would ensue
from having to unwind the estate freeze and that the respondents would suffer
as having taken steps on the basis of the 2010 wills.
Justice Greer also held that Adam should not be
allowed to challenge the 2010 wills because he had no independent knowledge of
the estate, its assets, previous wills and pertinent information about the
estate planning nor did he have a close relationship with his grandfather or a
real explanation as to why he left it so late to come forward.
The Court of Appeal (Justices Gillese, van Rensburg and
Miller) disagreed with the conclusion reached by Justice Greer and allowed the
appeal. The decision of the Court of Appeal was written by Justice
Gillese.
Justice Gillese examined the nature of the court’s role and jurisdiction in probate cases. She accepted Justice Maurice Cullity’s explanation
that the court’s jurisdiction in probate is inquisitorial. In other
words, the court does not simply adjudicate upon a dispute between the
parties. The court’s function and obligation is to ascertain and
pronounce what documents constitute the testator’s last will and that are entitled
to be admitted to probate.
Justice Gillese then looked at rules 74 and 75
of the Rules. She held that subrule 75.06(3) plays an important
role in contentious estate proceedings. The subrule provides:
“any person who appears to have a financial interest in an estate may
apply for directions, or move for directions in another proceeding under this
rule, as to the procedure for bringing any matter before the court.”
In addition, rule 75.01 provides: “…any person
appearing to have a financial interest in an estate may make an application
under rule 75.06 to have a testamentary instrument that is being put forward as
the last will of the deceased proved in such manner as the court directs.”
Justice Gillese did not accept the proposition that as a general principle an interested
person is entitled, as of right, to require that a will be proved in solemn
form. Rather the rule provides such a person the ability to make an
application to have the will “proved in such manner as the court directs”.
The two rules read together provide that a court has discretion whether
to order that a will be proved, as well as discretion over the manner in which
the will is proved.
In the Justice Gillese's view, an “interested person” must meet some minimal
evidentiary threshold before a court will accede to a request that a will be
proved. Otherwise, estates would be exposed to needless expense and
litigation. She held that the correct approach was that the
applicant must adduce "some evidence" which, if accepted, would call into question
the validity of the will or testamentary instrument that was being propounded.
Justice Gillese accepted that some decisions have indicated
that next of kin are entitled as of right to have the will proved in solemn
form. However, such cases are reflective of a presumption that applies in
situations where no certificate of appointment of estate trustee has been
issued, rather than a hard and fast rule.
The Court of Appeal also rejected Justice Greer's reasoning dealing with the equitable
doctrines of estoppel by representation and estoppel by convention. Justice Greer had relied on three cases as authority for the
power to invoke estoppel to bar the will challenge. However, Justice
Gillese held that one of the cases did not offer any authority or support for
the notion that the doctrines applied to probate matters. She
found that there is nothing in the jurisprudence to support the extension of
the equitable doctrines of estoppel by convention or representation to matters
involving validity of a will.
Regards,
Blair
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