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One of the most important reasons to have a will in place is to ensure that your estate is distributed according to your wishes, especially if those wishes are contrary to what would happen if you were to die intestate (without a will). Most people would hope that a will would serve to minimize conflict in the event of your death, but as we saw in a recent decision from the Court of Appeal for Ontario, a will is not a guaranteed way to avoid litigation, especially if the will leaves some people out of an inheritance all together. The case is also a reminder about the impact of costs involved with will challenges.  

Upset siblings

The deceased passed away on April 29, 2009. He had three children (two sons and a daughter). His wife had predeceased him, having died in 2005.  The deceased’s will stipulated that the entire estate should be left to his daughter. However previous wills had distributed his estate among his three children as well as his grandchildren.

The male children of the deceased commenced an action against their sister in August 2011 seeking to set aside the most recent will (the “2006 will”), a declaration that part of the sister’s home was held in trust for the estate, an accounting of the assets of the estate, and damage against the sister for conversion of estate property and breach of fiduciary duty.

A problem with limitation periods

The sons of the deceased were unsuccessful at trial. The judge dismissed all of the claims against the male children, stating they were statue-barred by the Limitations Act, 2002. The trial judge admitted that the male children had shown there to have been suspicious circumstances in relation to the execution of the 2006 will, the daughter had discharged her onus to prove testamentary capacity. The trial judge found the sons to have failed to show undue influence. Ultimately, the trial judge refused to even consider the brothers’ arguments about the validity of the will since their claims were statue-barred.

On appeal

The male children appealed the trial judge’s decision, but were not successful. However, the daughter also appealed the trial judge’s cost decision, which saw her awarded no costs.

The trial judge provided two reasons to not award costs. The first was that the male children had established “suspicious circumstances” surrounding the will, but that they were statute-barred from those circumstances changing anything. Secondly, he indicated that the daughter’s “misleading evidence” about her father’s mental state was an attempt to mislead the court and could not be condoned.

The court did not entirely buy the trial judge’s reasoning that the only reason the daughter was successful was because of the limitation period, writing “The trial judge accepted that (the male children) had shown suspicious circumstances in respect of the 2006 will. However, he went on to find that (the daughter) had rebutted those suspicious circumstances and demonstrated her father’s testamentary capacity. The trial judge made strong findings of fact in favour of (the daughter) on both the testamentary capacity and the undue influence issues.”

The court also found that the daughter’s evidence “had no effect on either the length of the trial, or the conduct of the trial. Her misleading evidence also had no impact on the trial judge’s findings.”

The court allowed the daughter’s appeal, awarding her $10,000 in costs.

 If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 1-844-2-DERFEL or contact us online to schedule a consultation.

For professional service and expert advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to meet a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 1-844-2-DERFEL or contact us using the form.

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95 Barber Greene Road, Suite 300
Toronto, Ontario,
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