Throughout 2024 and into early 2025, the Courts released many riveting and groundbreaking decisions that have had an echoing effect throughout the estate litigation world. This blog will detail 5 of those decisions and cover a variety of topics and issues relevant to estate litigation and planning. A second blog acting as a “Part II” detailing other important decisions will be coming soon to a blog website near you.
The deceased died on July 16, 2018. In 1991, the deceased retained Mr. Gora to draft his will. However, it was only when the deceased died and the beneficiaries found his will that they discovered it was poorly drafted. In December 2020, both the deceased’s nieces and his two surviving sisters commenced an action against Mr. Gora for negligently drafting the will.
The current Limitations Act provides that an act or omission that took place before January 1, 2004 is deemed to have taken place on January 1, 2004. Therefore, the ultimate 15-year limitation period set out in the Limitations Act would have expired on January 1, 2019 if the “act” was the drafting of the will. Since both the actions were commenced in December 2020, Mr. Gora submitted that the plaintiffs were out of time and barred from pursuing the actions.
It is well known that a will speaks and takes effect as if it had been made immediately before the death of the testator. The plaintiffs claimed that since beneficiaries have no rights under a will until a testator dies, they could not sue Mr. Gora until the deceased died in 2018.
The Court found that the claims of either party hinged on the meaning of the “act of omission on which the claim is based” under the Limitations Act. As the statute is unclear and ambiguous about what this means (as many litigators would agree), the court undertook a statutory interpretation analysis. Justice Myers considered the legislative intentions behind the Limitations Act and found evidence demonstrating that the Legislature considered the risk of rights being taken away before they were discovered when originally drafting the statute. The ability to amend statutes and create statutory exceptions are within the powers of elected officials in the Legislature, not unelected judges of the Court.
Justice Myers acknowledged that this decision puts future beneficiaries in a unique position. Beneficiaries have a common law right to sue a testator’s drafting lawyer for negligently drafting a will. However, it is not the Court’s role to draft legislation. The Court must interpret the statute to give effect to its legislative purpose.
The takeaway is that the 15-year ultimate limitation period runs from the date of the lawyer’s negligent act (the will drafting), not from the date of death. In other words, the “claim” (in law) occurs when the negligent drafting happened, even though the harm is only realized much later. This decision essentially imposes a practical 15-year “shelf-life” on wills in terms of professional liability.
The deceased died in 2014 leaving a 2007 will that disinherited his daughter, Gayle, largely in favor of his son, Glenn. This 2007 will was a change from prior wills that had benefitted both children. Gayle first learned of the new will’s existence in late 2014 but did not obtain a copy of it until January 2015.
She launched a will challenge in December 2016, alleging suspicious circumstances and lack of testamentary capacity surrounding the 2007 will. Glenn argued that Gayle’s challenge came too late (more than two years after their father’s death and her initial notice of a will) and was statute-barred.
The core issue was when the limitation period starts running for a will challenge. Does mere knowledge that a will exists trigger the limitation period, or must the claimant have knowledge of the contents of the will and their impact on her interests?
The Court of Appeal confirmed that the principle of discoverability (when you find out or ought to have found out about a potential claim) applies to will challenges. While the presumptive start date for a will challenge is the date of death, that can be extended until the claimant knows (or ought to know) the material contents of the will. In this case, Gayle did not “discover” her cause of action until she actually received and reviewed the 2007 will in January 2015.
The Court of Appeal upheld the application judge’s ruling that knowledge of the will’s existence alone is insufficient – the limitation clock starts when the disappointed beneficiary gains knowledge of the will’s content and effect on their interests.
This decision provides guidance that a person who may contest a will is not required to sue based on speculation or rumors of disinheritance. The two-year window will typically only begin once the person has a reasonable opportunity to see the will and understand how it affects them.
Sometimes family members may hide or delay sharing a will. This decision ensures that estate trustees must promptly disclose the will to interested parties or risk prolonging the limitation period, and in turn extending the time period for which the estate could become involved in litigation.
After a testator died, a disbarred lawyer (who was not named as executor in the will) applied to be appointed as the estate trustee for the deceased’s estate. The deceased’s will had named someone else, however that person never came forward, and the disbarred lawyer’s application was unopposed.
Under Ontario’s Estates Act, an “interested” person can apply for a certificate of appointment of estate trustee if no executor is in place. The Superior Court of Justice refused to appoint him, citing concerns about his suitability, and the lawyer appealed.
The issue was whether the court has the inherent jurisdiction to refuse to appoint an estate trustee even when the statutory requirements are met and no one objects. The Ontario Court of Appeal confirmed that courts have a broad inherent authority in estate matters to ensure proper administration. Specifically, the court held that it has an inherent discretion to deny an application for a certificate of appointment of estate trustee where the applicant is not appropriate, even if the application is unopposed and technically meets the statutory requirements.
Importantly, the court noted it may consider factors beyond just the immediate welfare of the beneficiaries, including the applicant’s character and the integrity of the estate administration process. This decision highlights that the Courts will prioritize the integrity of estate administration over procedural entitlement.
Beverly Roe died in 2014, leaving a 2005 will that disinherited one of her four sons (Mark). In her previous wills, she had treated all sons equally, so the 2005 will was a radical departure. Mark challenged the will, alleging that his mother lacked testamentary capacity (due to early Alzheimer’s) and was operating under an “insane delusion” about him when she cut him out.
Suspicious circumstances were acknowledged as present – Beverly had a dementia diagnosis around the will’s execution, and the change in her estate plan was extreme. The application judge found those circumstances to be true, but ultimately upheld the will, and Mark appealed that decision.
The Ontario Court of Appeal dismissed the appeal and upheld the 2005 will. It agreed that, despite Beverly’s cognitive decline, the evidence showed she knew what she was doing and had a rational basis for disinheriting Mark, even if her reasons were exaggerated or harsh. Although Beverley had irrational moments, there was some factual foundation for her negative feelings toward him, meaning her beliefs were not pure fantasy.
This decision affirms the principle of testamentary freedom, even in circumstances of advanced age and illness. It highlights that a testator can disinherit an adult child for reasons that may seem misguided, as long as those reasons are not purely delusional and the testator meets the capacity criteria. This is useful guidance for lawyers in drafting wills to, for example, ensure that the testator’s reasons for making certain decisions are well-documented.
William Waters, a wealthy professor and businessman, secretly gave over $30 million in cash and property to his much-younger girlfriend (who was also his wife’s caregiver), Gillian Henry, during the last decade of his life. His wife of 53 years, Phyllis, was left with almost nothing when he died in 2019.
The estate (and Phyllis) sued to recover the funds, claiming they were supposed to be invested for William or that Gillian was unjustly enriched by receiving the funds and giving nothing to William in return. Gillian argued the transfers were outright gifts. About $2.85 million of the transferred funds had actually belonged to Phyllis (from accounts William controlled as her attorney for property)
The Court upheld William’s freedom to make those decisions with his money, even if they were “bad” decisions. The Court found that for the majority of the $30 million in transfers, William intended them as irrevocable gifts to Gillian, so she was not required to repay those amounts. The court noted that while the gifts were extraordinary, they reflected William’s own wishes.
However, with respect to the funds that came from Phyllis, the court found William and Gillian’s actions unconscionable. William breached his professional duties and obligations to Phyllis as her attorney for property by misusing her money. Gillian, as Phyllis’s caregiver, also owed her a duty. The court ordered Gillian to repay $2.85 million (the portion taken from Phyllis) to the estate to hold in trust for Phyllis.
This high-profile decision further outlines the principle of testamentary autonomy and freedom of inter vivos gifting (gifts made during someone’s lifetime), even where the transfers seem unwise or unfair. It is a reminder that courts will generally respect a capable adult’s decision to give away wealth. However, the decision also illustrates limits to that freedom: fiduciary obligations and equitable doctrines can intervene to prevent injustice to vulnerable people.
1 Comment
Audrey Miller
April 23, 2025 - 3:53 pmThank you Jonathan for your excellent summary. Note to self: choose our attorney and lawyers- wisely!!!