All About Estates

Issue Estoppel – Stopping a Second Kick at the Can

The discovery of holographic wills always send up red flags to estates litigators, especially when the holographic will is a dramatic departure from the prior distribution of the estate. While questions of fraud immediately come to mind, there may also be a limitations problem if the holographic will is found more than two years since a certificate of appointment of estate trustee was issued. Problems may also arise if this is the second proceeding in which a party is attempting to advance the holographic will as valid. Such was the case in Barcham v Barcham.

George Barcham passed away in May 2009. At the time of his death, the only significant asset of his estate was a piece of real property. Almas Barcham submitted the deceased’s June 1995 will for probate and was appointed estate trustee in November 2009. Almas was the sole beneficiary of George’s estate pursuant to the 1995 will and ownership of the deceased’s property was transferred to him.

In May 2012, Lazar Barcham (the deceased’s brother) brought a claim against Almas seeking a declaration he held a 1/3 interest in the property. At the time the claim was commenced, Lazar made no mention of the deceased having executed a holographic will in 2000, after the 1995 will was executed, or of having been given the holographic will by his brother for safekeeping.

In May 2014, Lazar found the 2000 holographic will in a briefcase stuffed with other papers. Lazar claimed he had been diligently searching his house for the holographic ever will since George’s death but had had no luck finding it until now. The holographic will purportedly left George’s entire estate to Lazar.

In October 2015, Lazar brought a motion to amend his statement of claim to reflect the new, alternative, relief he was seeking – namely, to set aside Almas’ appointment as estate trustee; to set aside the 1995 will; to set aside the distribution of the estate; a declaration that the holographic will was the deceased’s last will and testament; and a finding of the court that Lazar was the sole beneficiary of George’s estate.

In or around the same time, Lazar also brought a separate application against Almas seeking essentially the same relief.

The motion to amend the statement of claim was heard by Lederman J. in January 2016. (For a review of Lederman J.’s decision, click here.) Lederman J. held that the requested amendments raised a new cause of action not set out in the statement of claim. In addition, if the action were to be advanced in an entirely new statement of claim, it would be statute-barred due to the expiry of the limitations period. For these reasons, Lederman J. dismissed the motion to amend the statement of claim.

Following Lederman J.’s decision, Lazar discontinued his action in March 2016. As a result, only Lazar’s application remained outstanding.

Cavanagh J. heard Lazar’s application in January 2017. The question addressed by the court was whether Lederman J.’s decision (made in regards to Lazar’s discontinued action) precluded Lazar from bringing his application for relief based on the holographic will. The court’s answer was yes – issue estoppel applied to prevent Lazar from re-litigating the holographic will.

The court set out the three preconditions to the operation of issue estoppel: (1) the same question has been decided; (2) the judicial decision which is said to create the estoppel was final; and (3) the parties to the judicial decision were the same persons as the parties to the proceeding in which the estoppel is raised. The court also reviewed the reasons behind issue estoppel: to avoid duplicate litigation, potential inconsistent results, undue costs, and inconclusive proceedings.

In this case, Cavanagh J. found that the question of whether a new cause of action founded upon the holographic will was statute barred had been explicitly put into issue and determined by Lederman J. (as set out above, Lederman J. had held that the new cause of action based on the holographic will was statute barred). The court also found that Lederman J.’s decision was final because it conclusively determined the substantive question between the parties, even though it did not determine the entire action. Finally, the parties to both the action and the application were the same. Since all three criteria of issue estoppel had been met, the court held that Lazar was precluded from bringing forward the holographic will and seeking the same relief in his application as he previously requested in his action.

As was the case in Barcham v Barcham, parties usually only get one chance to bring forward a claim for relief – make sure to put your best foot forward.

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About Gillian Fournie
Gillian is a lawyer with de VRIES LITIGATION LLP. Her practice focuses on the area of trusts and estates litigation. More of Gillian's blogs can be found at

1 Comment

  1. Sharon

    April 20, 2017 - 1:45 am

    Lazar Barcham is my uncle. He paid mortgage payments back in the late 70s early 80s towards the 567 Evans avenue house in Etobicoke. That house was paid off by Lazar Barcham and George Barcham along with their father Sheba Barcham. In my opinion I believe George Barcham was coerced in leaving the property and money to Almas, signing the will in her favor in 1995. He was living in fear with her as he was partially blind due to an operation from a brain tumor.

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