In failing to apply for a Certificate of Appointment of Estate Trustee with a Will, an executor and trustee of the Deceased found that it was open to her sister, a beneficiary of the estate, to bring an application for a declaration as to whether the codicils relied upon by the executor were valid or invalid, six and a half years after the death of the parents. The parents had both passed away within two months of each other.
The court determined that the limitation period of two years from the date of death, subject to the discoverability rules in the Limitations Act, as set out in Leibel v. Leibel, 2014 ONSC 4516 and Birtzu v. McCron, 2017 ONSC 1420 (Birtzu) did not apply as it was not a will challenge. The executor had not taken any steps to propound the codicils:
“…Had she brought such an application and had Helen responded to the application with a challenge to the validity of the codicils, the two-year limitation period, subject to the discoverability rules, would have applied. However, in the absence of such an application to prove the codicils, it remains open to Helen to bring an application for declaratory relief.” (at para 45)
The court examined whether consequential relief was sought. If a declaration is merely ancillary to consequential relief, then the entire “resource” will be considered consequential relief and it will fail (as set out in McMurtry v. McMurtry, 2016 ONSC 2853). Dietrich J. determined that the applicant only sought declaratory relief. While legal consequences naturally may flow from a declaration which pronounces on a legal position, this does not constitute “consequential relief” (relying on McMurtry).
The beneficiary brought her application for directions pursuant to rules 75.01 and 75.06(1) of the Rules of Civil Procedure – to have a testamentary instrument that is being put forward as the law will of the deceased proved in such manner as the court directs. The executor then brought a motion for summary judgement of the application, relying on the Limitations Act. The applicant brought a cross motion for summary judgment on her application. The court held that she could make a determination of the validity of the codicils and the determination did not require a trial.
The court examined whether the codicils were valid or not by looking at various facts including suspicious circumstances, lack of capacity to execute the codicils, inability to appreciate what the deceased was signing, and undue influence. The court concluded that the codicils were invalid due to various reasons including suspicious circumstances wherein it was more likely that the executor created the codicils, lack of testamentary capacity, and insufficient evidence to find that the codicils were executed in compliance with the requisite formalities as set out in the Succession Law Reform Act.
The applicant was entitled to summary judgment on her application. An order declared the codicils invalid.
Key takeaway: Unless an executor applies for a Certificate of Appointment of Estate Trustee with a Will, the 2 year limitation period from the date of death will not run in respect of an application for solely declaratory relief.