Should you wait to bring a will challenge?


Written on August 27, 2014 – 9:56 am | by Katie Ionson

The Ontario Superior Court recently addressed the question of the limitation period applicable to a will challenge.[1] The challenge in this case was brought by the testatrix’s son. The testatrix, Eleanor, died on June 4, 2011. She left Primary and Secondary Wills executed on April 9, 2011 that left specific assets to her son, Blake, and divided the residue of her estate equally between Blake and her other son, Cody. Blake argued that his mother’s intention was to leave him her entire estate and on September 5, 2013, he brought an application for a declaration that the 2011 Wills were invalid.

The respondents argued that the general two-year limitation period set out in the Act applies to will challenges and that Blake’s application was therefore statute-barred under the Limitations Act, 2002 (the “Act”). They submitted that Blake had sufficient knowledge to commence the application prior to September 2011. Among other things, on June 28, 2011, Blake wrote Eleanor’s lawyer expressing concern with his mother’s choice of executors and requesting the names of reputable estate lawyers, which were subsequently provided to him. The court also found that Blake had received a copy of the Will by July 2011 and that he was familiar with Eleanor’s assets.

Justice Greer agreed with the respondents in finding that the claim was statute-barred under the Act. She acknowledged that s. 16(1)(a) of the Act states that no limitation period applies in respect of an application for a declaration where no consequential relief is sought. However, she found that Blake’s will challenge sought consequential relief in that it asked, among other things, for an Order removing the executors and requiring them to pass accounts. In arriving at this conclusion, Justice Greer noted that:

“To say that every next-of-kin has an innate right to bring on a will challenge at any time as long as there are assets still undistributed or those that can be traced, would be to put all [executors] in peril of being sued at any time…”

In this case, Justice Greer found that Blake had sufficient knowledge to commence the application on the date of Eleanor’s death and the limitation period therefore began to run on that date. The decision suggests that the date of death is the date the act or omission giving rise to the challenge occurs, since a will becomes effective on death. This is significant as s. 5(2) of the Act deems the limitation period to begin on the date on which the act or omission giving rise to the proceedings occurs, absent evidence to the contrary.

The decision of Leibel v. Leibel is a wake-up call to those contemplating a will challenge but tempted to hit the snooze button. With so much occurring in the executor’s year, a two-year limitation period in will challenges, potentially beginning on the testator’s death, is a short time in which to bring an application.

Katie Ionson


[1] Leibel v. Leibel, 2014 ONSC 4516. The court also considered the issue of whether Blake was estopped from challenging the Will based on equitable doctrines. This blog does not discuss those aspects of the decision.

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    Care @ Home.


    Written on August 26, 2014 – 6:51 am | by Audrey Miller

    I have always stated that the Power of Attorney for Finances needs to be able to support the decisions made by the Power of Attorney for Personal Care. In order words, care needs should dictate where monies should be spent. The first part of the equation is understanding what the person requires today and what they likely will require tomorrow. How much care do they require and for what activities of daily living? As we age and our abilities generally decline, we will require greater amounts of assistance. We need to plan knowing that our care needs will most likely increase with age. The Heart and Stroke study indicated that the majority of us live the last ten years of life in poor health. As we don’t know our expiry dates, we don’t know when the ‘last’ ten years starts! The obits and Stats Can tells us that we are living longer. More and more of us are seeing our 90th and 100th birthdays.

    Many of those I work with started receiving assistance with some of their activities of daily living while in their 70’s and 80’s. Having 20 or 30 more years of paid care is likely not affordable for most of us. While this article is about paid care, it is critical to acknowledge the many hours of un paid care provided by family and friends. There is also income lost by many family caregivers as a result of time spent away from work either by providing hands on care or other instrumental assistance such as driving to and accompanying a senior to the doctor’s appointment, shopping for groceries, cleaning or cooking for someone else.

    While most of us want to live out our days in our own homes, it often takes a family and a community to provide enough support so that this hope/wish/desire can become a reality. Many seniors don’t feel they need any assistance. This can be both as a result of wanting to fiercely hold on to their independence and not wanting to spend their money. However for those who need and accept paid care, it can be costly. Personal support workers can be a real lifesaver. They truly can make the difference for an individual, who with support is able to thrive and live well and without assistance, would fail.

    Personal support workers are not regulated and the Home Care Association is working hard to ensure standards are in place. I have attached a video on How Do I Hire A Caregiver? and
    as well as a publication from the Home Care
    Association
    .
    Lessons Learned: Buyer Beware- Do your due diligence.
    Audrey Miller

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      Insolvent Estates – Administration Options


      Written on August 25, 2014 – 6:00 am | by Jasmine Sweatman

      An emerging trend in estate administration in the past few years seems to be an increase in the number of insolvent estates. An estate is insolvent if it has liabilities in excess of its assets and therefore is unable to meet financial obligations with creditors as the debts become due.

      There are two primary methods for administration of insolvent estates: common law and statutory schemes under the Trustee Act or bankruptcy under the Bankruptcy and Insolvency Act. Both methods have benefits and drawbacks and should be considered in the context of the facts of the estate, not just at the beginning, but also during the course of the administration. As estate practitioners we sometimes forget about the bankruptcy option, which can be a viable alternative to an insolvency administration under the Trustee Act.

      This emerging trend seems to call for us, as advisors, to ensure the named estate trustee carefully examines the assets and liabilities of the estate and to be careful with the timing of distribution and payment of the debts. Often times more investigations should take place before the Certificate of Appointment is applied for. While attention to these details in the beginning of estate administration may help, often the full extent of the assets and liabilities cannot be known until after the Certificate of Appointment is granted and sometimes fairly along in the administration process, requiring us and our clients to keep on top of the administration. Estate trustee insurance may also need to be considered if insolvency is suspected.

      Lesson Learned: During an estate administration keep an eye on the liabilities vs. the assets and keep in mind the various options for administration.

      Until next time,

      Jasmine Sweatman /Leigh Sands

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