Originally published in our March 2017 Newsletter
Birtzu v. McCron 2017 ONSC 1420 (CanLII), http://canlii.ca/t/h07hn
A recent Ontario Superior Court of Justice decision, Birtzu v. McCron, addressed the limitation period for commencing a Will challenge and when such limitation begins to run. The question of whether there is a limitation period within which a Will challenge must be commenced was not conclusively addressed in the amendments to the Limitations Act, 2002 (in effect from March 8, 2016: link to act ) .
The question has largely gone unanswered, but for perhaps the 2014 case of Leibel v. Leibel. The case, found inter alia, that a Will challenge outside of 2 years was statute barred.
The deceased who passed away on April 29, 2009 (was the father of three children). Prior to his death the father had moved in with his daughter and her family. Medical records indicated that the father began to show signs of early dementia and short term memory loss in or about June of 2002. The daughter accompanied the father to various medical appointments and to the bank and was his primary caregiver during the latter years of his life. The deceased executed a will in 2006 under which he left his entire estate to his daughter who was also the sole executor (the “2006 Will”). Her brothers commenced a will challenge claim on August 18, 2011, seeking an order setting aside the will.
The first issue addressed involved the question of whether the claim was statute barred. Justice Bloom turned to Leibel v. Leibel where Justice Greer had discussed the application of the relevant provisions of the Limitation Act, 2002 and found that the two year limitation period began to run on the date of death. Accordingly, the daughter argued that the limitation period began to run the day her father died. In the alternative , the limitation ran from July 17, 2009 when the brothers’ lawyer wrote to the sister’s lawyer alerting her to a possible legal action , or July 22, 2009, the deadline that the daughter was to turn over the estate assets or face legal action.
The plaintiffs argued that the limitation period did not begin to run until July 8, 2010 when the daughter wrote and denied her consent to the release of her father’s medical records. The plaintiffs argued that until she refused the medical records they did not “discover” they had a claim, nor should they “ought to have known” about the claim under section 5(1)(b) of the Limitations Act, 2002 until this refusal was communicated . The refusal was what demonstrated her “duplicitousness in procuring the will.”
Justice Bloom concluded that the limitation period expired, at the latest, two years after July 22, 2009 (the deadline to face legal action), but noted it could have started running as early as the date of death:
Once the Plaintiffs were aware that the 2006 Will denied them any gift and that the deceased suffered from dementia, as reasonable persons they ought to have known of their claim . . . It may well be that the limitation period commenced running on the death of [the father] as envisaged in Leibel v. Leibel, supra, but in my analysis I have reviewed the matter in a more favourable light to the Plaintiffs. Based on e i ther view, the action is statute barred. 
OTHER LEGAL ISSUES
Despite finding that the claim was statute barred, Justice Bloom went on to discuss the other legal issues raised. First, the Court rejected the defendant’s argument that the plaintiffs lacked standing, as the plaintiffs “appeared” to have a financial interest since the previous will made each of them beneficiaries and they would also be beneficiaries on intestacy. The “test requires simply an appearance of a financial interest not proof of one”. 
On the issues of testamentary capacity and undue influence, the Plaintiffs discharged the evidentiary burden to prove suspicious circumstances, however, the defendant proved capacity and the plaintiffs failed to prove undue influence on a balance of probabilities. In coming to these conclusions, the Court did not accept the daughter’s evidence with respect to her father’s capacity, however it relied on evidence from others, including the drafting solicitor, a long-time friend, the deceased’s family physician and an expert capacity assessor.
The evidence revealed that the lawyer who drew up the 2006 Will was chosen by the daughter and she accompanied him to the office when the instructions were provided and when the will was signed. The lawyer considered and concluded that the father was competent. He did not exhibit any “bizarre conduct”. However, the drafting solicitor did not ask his age, did not know he had Alzheimer’s, nor did he ask if there was a prior will. He also did not suggest obtaining a medical opinion regarding his competency to make the 2006 Will because the lawyer felt he was competent. Justice Bloom observed “knowing that [the Father] suffered from dementia and depression would have been important considerations in his decision whether to undertake the will matter”. 
The Court turned to the deceased’s family physician’s evidence and testimony which “squared” with other testimony. While the deceased had dementia at the time he executed the 2006 Will it was largely confined to memory loss. He still “understood the big things, including his needs regarding finances and medical health”. 
A long-time friend of the deceased also gave insight into why the testator would leave everything to the daughter, including that it was in gratitude for her care and assistance to him in the last years of his life, while his sons were not acting in a similar manner.
Expert opinion evidence was also provided through a retroactive assessment of capacity and susceptibility to undue influence. The expert examined the relevant medical records and saw no documentation that indicated that the father’s dementia was so severe that he could not have had testamentary capacity when the 2006 Will was executed: the father knew that he was making a will giving his entire estate to this daughter. He did so to reward her for her care and assistance; he felt that he had done enough for his sons financially.
However, the expert concluded that he was susceptible to undue influence because he was 84 and suffering from dementia and depression. The daughter made the arrangements to have the 2006 Will drafted and was the sole beneficiary. Nevertheless, this evidence fell short of establishing undue influence. There was “no proof of coercion by the daughter, nor was their proof that she subverted the testator’s wishes”. The testator’s gratitude to her and the absence of similar sentiments toward his sons explain why he made the Will in question.
This case suggests that a two year limitation period applies to Will challenges and further that while it will likely run from the date of death, it could be extended depending on when the plaintiffs “discover” their claim, or “ought to have known” they had a claim. This case is a cautionary tale for beneficiaries such that they consider acting in a timely manner when contemplating a Will challenge and not delay . Importantly however, there is no appellate decision opining on whether there is a limitation period on Will challenges and whether and what that limitation might look like in each set of circumstances. It is unknown to the writer whether this particular decision is under appeal. Notably, the Leibel decision was not appealed. Some argue there is simply no limitation period applicable to a Will challenge, in that it would be wrong to apply one given the public policy reasons behind protecting a deceased testator’s testamentary intentions and the related special role of the court in matters where there is no person to speak for the deceased in such matters. The Ontario Court of Appeal decision in Neuberger http://canlii.ca/t/gnmms provided mention of Leibel, it stated:
 The motion judge relied on three cases as authority for the power to invoke estoppel to bar the Wills Challenges: Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co., 1970 CanLII 3 (SCC),  S.C.R. 932; Ryan v. Moore, 2005 SCC 38 (CanLII),  2 S.C.R. 53; and, Leibel v. Leibel, 2014 ONSC 4516 (CanLII), 2 E.T.R. (4th) 268.
 Leibel is the only decision of which I am aware in which estoppel has been applied when determining whether a challenge to the validity of a will should be permitted to proceed. It is an earlier decision of the same motion judge. That decision was not appealed.
 In Leibel, the party seeking to challenge the validity of wills waited more than two years from the date of death to bring his application. The motion judge found that there were no discoverability issues and, thus, that the claim was statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
There may well be an appellate challenge on the important question of whether there is a limitation period applicable to Will Challenges and if so, in what circumstances. For now, some believe there is one occurring two years from the date of death of a deceased person, and there are now 2 cases which seemingly support such a position; on the other hand, others believe the argument exists that there is none and there ought not to be a limitation period applicable to Will challenges. The future will almost certainly inform us. In the interim, lawyers arguably ought to err on the side of caution and inform clients of a 2 year period within which to commence any Will challenge. By the same analysis, lawyers should not be dismissive of appeal considerations when informing clients on the merits of a claim outside of the two (2) years.
In Oestreich  , Justice Hayley held that the Limitations Act did not bar a Will challenge. Notably Justice Hayley’s decision was rendered under the previous Limitations Act. However, in Neuberger, the Court of Appeal confirmed that a Superior Court adjudicating over a probate matter is to exercise an inquisitional approach in ascertaining the intention of the deceased. Query whether statute barring a Will challenge is antithetical to the court’s inquisitorial jurisdiction in probate matters.
[ 1] 2017 ONSC 1420 (“Birtzu”)
 2014 ONSC 4516
 Limitations Act, 2002, S.O. 2002 c. 24 Sched. B
 Birtzu at para. 51
 Birtzu at para. 54
 Birtzu at para. 94
 Birtzu at para. 130
 Birtzu at para. 137
 Neuberger v York, 2016 ONCA 191 (CanLII)
 Oestreich v Brunnhuber (2001) 38 E.T.R. (2nd) 82