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Ontario Court of Appeal Confirms Principles Applicable to Proof of Will in Solemn Form

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Trusts, Wills, and Estates Bulletin

Chaim Neuberger died in 2012, and was survived by his two daughters, Edie Neuberger and Myra York, and their adult children. The deceased executed primary and secondary wills in 2004 (the "2004 Wills"). Later, he executed new primary and secondary wills in 2010 (the "2010 Wills"). Both sets of wills left the deceased's multi-million dollar estate to his two daughters and their children, and named Edie and Myra as the Estate Trustees; however, the wills differ in a manner that results in the 2010 Wills leaving Myra approximately $13 million more than Edie than under the 2004 Wills.

In 2013, Edie commenced legal proceedings to challenge the validity of the 2010 Wills. In her challenge, Edie raised concerns over: (i) her father's alleged incapacity at the time he executed the 2010 Wills; and (ii) suspicious circumstances. In early 2014, Edie's son, Adam Jesin-Neuberger, also challenged the validity of the 2010 Wills. Both Edie and Adam asked that the 2010 Wills be proven in solemn form prior to probate (pursuant to rules 75.01 and 75.06 of the Rules of Civil Procedure), which requires the propounder of the will to establish that the will was validly executed, the testator had testamentary capacity, and the testator had knowledge and approved of the contents of the will.

Subsequently, the respondents brought a motion to dismiss Edie and Adam's will challenges on the basis that the challenges were barred by the equitable doctrine of estoppel by representation and estoppel by convention. Estoppel by representation requires a positive representation made by one party to another with the intention that the other party will act on it; if the other party does so act, then the representor is precluded from disputing the truth of the representation. Estoppel by convention operates where parties to a transaction act on an agreed or assumed set of facts: if both have acted upon these facts, then, with respect to that transaction, each party is precluded from refuting the facts.

The Motion Judge's Decision

The motion judge found that both estoppel by representation and estoppel by convention had been made out. As such, Edie was found to be estopped from bringing her will challenge. In coming to this conclusion, the motion judge found the following:

  1. between the death of her father and her will challenge, Edie had taken steps as an Estate Trustee under the 2010 Wills; and
  2. Edie had delayed bringing her challenge to the 2010 Wills, and did not have an explanation for the delay.

The motion judge also found that Adam was "straw man" who came forward to support his mother's position without having direct knowledge of the estate, the 2010 Wills, or the issues raised by his mother in her challenge. As such, the motion judge held that Adam's will challenge was also barred, and that "[Adam] cannot therefore do indirectly for Edie, what he cannot do independently on his own" (para. 120).

In her analysis, the motion judge also noted that rule 75.01 is discretionary in nature, and as such, neither Edie nor Adam had an inherent right to have the 2010 Wills proven in solemn form. The motion judge held that: "No beneficiary or person with a financial interest in the estate, has an innate right to be allowed to bring on a Will challenge that is opposed" (para. 112).

The Court of Appeal Decision

On appeal, Adam argued that as an interested person under rules 75.01 and 75.06, he was entitled, as of right, to have the 2010 Wills proved in solemn form pre-probate. The Court of Appeal disagreed with this position, and found that pursuant to rules 75.01 and 75.06, an interested person can request, not require, a will to be proven in solemn form. The Court also determined that an applicant or moving party under rule 75.06 has the onus of meeting a minimal evidentiary threshold before the court will consider a request that a testamentary instrument be proved.

Accordingly, the Court held that the appellants were not entitled, as of right, to proof in solemn form of the 2010 Wills. The Court also left the decision of whether to order that the 2010 Wills be proved and, if so, in which manner, to the court that later hears the application and motion for directions concerning Adam and Edie's will challenges.

The Court went on to find that the equitable doctrines of estoppel by representation and estoppel by convention did not bar a challenge to the validity of a will. In coming to this conclusion, the Court held that: (i) the motion judge erred in finding a jurisprudential basis for the application of the doctrine of estoppel to matters involving the validity of a will; and (ii) the use of estoppel in such matters runs contrary to the policy considerations that govern probate (at para. 103).

Concerning the first point, the Honourable Justice Gillese held that the Supreme Court of Canada decisions in Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co., [1970] SCR 932 and Ryan v. Moore, 2005 SCC 38 are not relevant to the question of the application of estoppel by representation and/or estoppel by convention to probate matters. Further, Justice Gillese 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 the validity of a will" (at para. 115).

With respect to public policy, the Justice Gillese wrote (at para. 118):

…A will, however, is more than a private document…a dispute about a will's validity engages interests that go beyond those of the parties to the dispute and extend to the testator and the public. Once a testamentary instrument is probated, it speaks to society at large…the court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated. It owes that duty to the testators, whose death preclude them from protecting their own interests, to those with a legitimate interest in the estate, and to the public at large. If the doctrine of estoppel were available to bar a party from having the validity of the will determine, the court's ability to discharge that responsibility would be in jeopardy.

Additionally, the Court accepted Edie's submission that allowing the lower court's determination that she had unduly delayed bringing her application to stand would adversely affect the administration of estates. As stated by the Court, "[t]he motion judge's reasoning would place estate trustees with doubts as to the validity of a will in an untenable position" (at para. 121) as they would either have to bring a premature challenge or take no steps as Estate Trustee while investigating the testator's capacity.

Lastly, with respect to the factual conclusions made by the lower court regarding Adam, the Court found that the motion judge erred in finding him to be a "straw man" as Adam's evidence was that his decision to commence his wills challenge was independently made, and there was no evidence of the contrary. The Court also went further to conclude that, even if found to be a "straw man", Adam was nonetheless entitled to pursue his will challenge as an interested person pursuant to rule 75.06.

To read more on the decision click here.

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