While the idea of appealing a judicial ruling is something most people are familiar with, the grounds on which someone can make an appeal are perhaps not as well known. For example, someone who loses a decision in court can’t appeal simply because they don’t agree with the court’s ruling. In addition, an appeal can’t be brought in order to litigate new issues. The details around this were recently described in a decision from the Ontario Superior Court of Justice’s Divisional Court.

Leading up to appeal

The decision was light on details of the trial before the appeal was brought. The son of the deceased was the Appellant. At the original trial, to substantive determinations were made. The first was that the money from the sale of the home of the deceased and his wife were to be paid out of court and distributed to the terms of the will of the deceased. Secondly, the wife was to be removed as trustee of the deceased’s estate retroactive to her original appointment to the role.

In order to appeal, the Courts of Justice Act requires that the ability to do so (known as “leave”) must be granted. In this case, the court granted leave to appeal, but then dismissed it.

But why?

It seems that the appellant was appealing the earlier decision by the court to not hear a motion (it wasn’t clear what the motion was, other than that it concerned the validity of the will). The reason the court wouldn’t hear it was because it was not properly served, and had been filed in the wrong courthouse. The appeal judge said it was well within the court’s authority and jurisdiction to have refused to hear the issue.

The court noted that the issue of the validity of the will was not one dealt with in the original trial. The court wrote that the appellant “has yet to register any formal objection, either by notice of objection, motion or application to either the validity of the Will or the appointment of the Estate Trustees.”

The court recognized that the appellant wanted to contest the will in order to overturn the distribution of funds as dictated by the will. He instead wanted the funds from the sale of the home to remain available as a security for the enforcement of a counterclaim he had made. However, the counterclaim had no connection to the will or the estate of the deceased. Instead, the appellant was seeking money for a loan he had made to his father as well as for payment for work he had done to winterize a cottage owned by the deceased.

The court determined that there had been no demonstration that the appellant had a strong prima facie case in respect to his counterclaims, which appear to have been barred by the Limitations Act.

As a result, the appeal was dismissed.

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 416-847-3580 or contact us online to schedule a consultation.