As a general rule, a will cannot be challenged while the testator is alive.
In Palichuk v. Palichuk, 2023 ONCA 116 (“Palichuk”), the Court of Appeal recognized this general rule and noted the House of Lord’s decision in Duke of Marlborough v. Lord Godlophin (1750) where Lord Hardwicke remarked that “a testamentary act is only inchoate during the life of the testator, from whose death only it receives perfection: being till then ambulatory and mutable, vesting nothing, like a piece of waste paper”.[1]
On the facts of the case, the Court of Appeal noted that the testator was found, inter alia, capable of managing property and having testamentary capacity, therefore the will challenge was about “an academic or hypothetical exercise” and the court will refuse to answer questions in the abstract or questions that may or may not be a problem depending upon the happening of future events.[2]
However, the Court of Appeal went further and recognised: (1) a jurisdictional barrier for an application to seek the “opinion, advice, or direction” on the will of a living person pursuant to section 22 of the Succession Law Reform Act (“SLRA”) and Rule 14.05(3) of the Rules of Civil Procedure (“Rules”); and (2) public policy reasons not to permit a will challenge prior to death.[3]
Statutory Presumption and Speaking from Death
Section 22 of the SLRA explicitly states that a will speaks from death:
22 Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to,
(a) the property of the testator; and
(b) the right, chose in action, equitable estate or interest, right to insurance proceeds or compensation, or mortgage, charge or other security interest of the testator under subsection 20 (2).
In VanSickle Estate v. VanSickle, 2022 ONCA 643, the Court of Appeal reviewed an application for directions in the interpretation of a will and granted the appeal due to an extricable error of law in applying the presumption that a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to the property of the testator, as set out in s. 22 of the SLRA.[4] This case was previously discussed in a blog post here.
The decision in Duke of Marlborough v. Lord Godlophin (1750) has also been cited for the proposition that a will only speaks from the moment of death.[5]
Jurisdictional Barrier
In Palichuk, the Court of Appeal recognised a jurisdictional barrier under the Rules for a will challenge with respect to a living testator.
Rule 14.05(3) states:
14.05(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust. [Emphasis added].
The Court of Appeal noted that this is the only Rule to employ this language and it does not contemplate providing an “opinion, advice or direction” on the will of a living person.[6] As such, determining the validity of a will depends on a future contingency – the testator’s death.[7] The Court of Appeal did not address other possible routes of jurisdiction under Rule 14.05.
Spes Successionis and Public Policy
An interest under a will is a spes successionis, which translates to a “hope of succession”. As a doctrine, it means an expectation or possibility in receiving property. In Oosterhoff on Wills, Professor Oosterhoff explains the concept at Chapter 4.1.2 as follows:
Since a will does not take effect until the testator’s death, it follows that until the testator is dead the persons named in the will as beneficiaries do not own the property the will purports to give them. That is because the property still belongs to the testator who might have a change of heart and leave the property to others by a subsequent testamentary document or by inter vivos disposition. Further, in order to take the property left to them the beneficiaries must survive the testator. If a beneficiary predeceases the testator and the testator does not provide for a substitutionary gift to another person, the gift is said to lapse. […] Thus, until the testator is dead the persons named in the will have only a hope of succeeding to the property.[8]
Professor Oosterhoff and the Court of Appeal in Palichuk have noted that in recent years, some courts have not always followed these principles.[9]
For example, in Kidd v. Canada Life Assurance Co., 2010 ONSC 1097 (“Kidd”), a pension class action case, Justice Perell noted that before a will becomes operational, the interests of beneficiaries under the will are a spes successionis or an expectancy.[10] A person with a statutory right of inheritance in the event of intestacy (dying without a will) also has a spes successionis, “only a hope (not even an expectation) as long as the other person is alive”.[11] Justice Perell suggested however in obiter dictum that an exception could arise when a living person “no longer has the mental competence” to change their will.[12]
In Palichuk, the Court of Appeal may have closed the door on such exceptions to the general rule:
Practically, there will be some cases in which the validity of a will, trust or transfer incidentally comes into play. This does not mean that it is either necessary or desirable for the law to permit direct challenges to these instruments during the grantor or testator’s life.[13]
To the contrary, the Court of Appeal held there are strong public policy reasons not to permit a will challenge prior to the death of a testator:
A testator may change their will as often as they like. It is entirely unknown how much, if any, money or property there will be left to dispute until the testator dies. It cannot be known if any of the beneficiaries will have predeceased the testator. Thus, the common law insists upon the death of the testator before litigation. Otherwise, the courts would be inundated with litigation that is hypothetical during the lifetime of the testator, with the potential for re-litigation after their death.[14]
Statutory Duties of Guardians and Attorneys
Although not discussed by the Court of Appeal in Palichuk, guardians and attorneys (substitute decision makers) may have a statutory duty to determine the validity of a will of an incapable person.[15]
Section 33.1 of the Substitute Decisions Act, 1992 (“SDA”) states:
33.1 A guardian of property shall make reasonable efforts to determine,
(a) whether the incapable person has a will; and
(b) if the incapable person has a will, what the provisions of the will are.
Subject to certain exceptions, section 35.1(1) of the SDA states:
35.1 (1) A guardian of property shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person’s will.
These provisions apply with necessary modifications to an attorney under a continuing power of attorney for property pursuant to section 38 of the SDA.
As noted by Professor Oosterhoff, pursuant to these provisions it may be necessary for guardians and attorneys in appropriate cases to seek a determination of the validity of a will.[16] It remains to be determined how courts will reconcile these statutory duties with the jurisdictional barrier and public policy reasons discussed by the Court of Appeal in Palichuk.
—
[1] Palichuk v. Palichuk, 2023 ONCA 116 at para 68.
[2] Palichuk v. Palichuk, 2023 ONCA 116 at para 63.
[3] Palichuk v. Palichuk, 2023 ONCA 116 at para 65 and 66.
[4] VanSickle Estate v. VanSickle, 2022 ONCA 643 at paras 1, 2, and 9.
[5] Palichuk v. Palichuk, 2023 ONCA 116 at para 68.
[6] Palichuk v. Palichuk, 2023 ONCA 116 at paras 64 and 65.
[7] Palichuk v. Palichuk, 2023 ONCA 116 at para 67.
[8] Oosterhoff, Albert et al., Oosterhoff on Wills, 9th edition, Thomson Reuters (Toronto, ON), page 119.
[9] Oosterhoff, Albert et al., Oosterhoff on Wills, 9th edition, Thomson Reuters (Toronto, ON), page 120; Kidd v. Canada Life Assurance Co., 2010 ONSC 1097 at para 69.
[10] Kidd v. Canada Life Assurance Co., 2010 ONSC 1097 at para 48.
[11] Kidd v. Canada Life Assurance Co., 2010 ONSC 1097 at para 48.
[12] Kidd v. Canada Life Assurance Co., 2010 ONSC 1097 at para 49.
[13] Palichuk v. Palichuk, 2023 ONCA 116 at para 70.
[14] Palichuk v. Palichuk, 2023 ONCA 116 at para 71.
[15] Oosterhoff, Albert et al., Oosterhoff on Wills, 9th edition, Thomson Reuters (Toronto, ON), page 121.
[16] Oosterhoff, Albert et al., Oosterhoff on Wills, 9th edition, Thomson Reuters (Toronto, ON), page 121.
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Written by: Nima Hojjati
Posted on: March 20, 2023
Categories: Commentary, WEL Newsletter
As a general rule, a will cannot be challenged while the testator is alive.
In Palichuk v. Palichuk, 2023 ONCA 116 (“Palichuk”), the Court of Appeal recognized this general rule and noted the House of Lord’s decision in Duke of Marlborough v. Lord Godlophin (1750) where Lord Hardwicke remarked that “a testamentary act is only inchoate during the life of the testator, from whose death only it receives perfection: being till then ambulatory and mutable, vesting nothing, like a piece of waste paper”.[1]
On the facts of the case, the Court of Appeal noted that the testator was found, inter alia, capable of managing property and having testamentary capacity, therefore the will challenge was about “an academic or hypothetical exercise” and the court will refuse to answer questions in the abstract or questions that may or may not be a problem depending upon the happening of future events.[2]
However, the Court of Appeal went further and recognised: (1) a jurisdictional barrier for an application to seek the “opinion, advice, or direction” on the will of a living person pursuant to section 22 of the Succession Law Reform Act (“SLRA”) and Rule 14.05(3) of the Rules of Civil Procedure (“Rules”); and (2) public policy reasons not to permit a will challenge prior to death.[3]
Statutory Presumption and Speaking from Death
Section 22 of the SLRA explicitly states that a will speaks from death:
22 Except when a contrary intention appears by the will, a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to,
(a) the property of the testator; and
(b) the right, chose in action, equitable estate or interest, right to insurance proceeds or compensation, or mortgage, charge or other security interest of the testator under subsection 20 (2).
In VanSickle Estate v. VanSickle, 2022 ONCA 643, the Court of Appeal reviewed an application for directions in the interpretation of a will and granted the appeal due to an extricable error of law in applying the presumption that a will speaks and takes effect as if it had been made immediately before the death of the testator with respect to the property of the testator, as set out in s. 22 of the SLRA.[4] This case was previously discussed in a blog post here.
The decision in Duke of Marlborough v. Lord Godlophin (1750) has also been cited for the proposition that a will only speaks from the moment of death.[5]
Jurisdictional Barrier
In Palichuk, the Court of Appeal recognised a jurisdictional barrier under the Rules for a will challenge with respect to a living testator.
Rule 14.05(3) states:
14.05(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust. [Emphasis added].
The Court of Appeal noted that this is the only Rule to employ this language and it does not contemplate providing an “opinion, advice or direction” on the will of a living person.[6] As such, determining the validity of a will depends on a future contingency – the testator’s death.[7] The Court of Appeal did not address other possible routes of jurisdiction under Rule 14.05.
Spes Successionis and Public Policy
An interest under a will is a spes successionis, which translates to a “hope of succession”. As a doctrine, it means an expectation or possibility in receiving property. In Oosterhoff on Wills, Professor Oosterhoff explains the concept at Chapter 4.1.2 as follows:
Since a will does not take effect until the testator’s death, it follows that until the testator is dead the persons named in the will as beneficiaries do not own the property the will purports to give them. That is because the property still belongs to the testator who might have a change of heart and leave the property to others by a subsequent testamentary document or by inter vivos disposition. Further, in order to take the property left to them the beneficiaries must survive the testator. If a beneficiary predeceases the testator and the testator does not provide for a substitutionary gift to another person, the gift is said to lapse. […] Thus, until the testator is dead the persons named in the will have only a hope of succeeding to the property.[8]
Professor Oosterhoff and the Court of Appeal in Palichuk have noted that in recent years, some courts have not always followed these principles.[9]
For example, in Kidd v. Canada Life Assurance Co., 2010 ONSC 1097 (“Kidd”), a pension class action case, Justice Perell noted that before a will becomes operational, the interests of beneficiaries under the will are a spes successionis or an expectancy.[10] A person with a statutory right of inheritance in the event of intestacy (dying without a will) also has a spes successionis, “only a hope (not even an expectation) as long as the other person is alive”.[11] Justice Perell suggested however in obiter dictum that an exception could arise when a living person “no longer has the mental competence” to change their will.[12]
In Palichuk, the Court of Appeal may have closed the door on such exceptions to the general rule:
Practically, there will be some cases in which the validity of a will, trust or transfer incidentally comes into play. This does not mean that it is either necessary or desirable for the law to permit direct challenges to these instruments during the grantor or testator’s life.[13]
To the contrary, the Court of Appeal held there are strong public policy reasons not to permit a will challenge prior to the death of a testator:
A testator may change their will as often as they like. It is entirely unknown how much, if any, money or property there will be left to dispute until the testator dies. It cannot be known if any of the beneficiaries will have predeceased the testator. Thus, the common law insists upon the death of the testator before litigation. Otherwise, the courts would be inundated with litigation that is hypothetical during the lifetime of the testator, with the potential for re-litigation after their death.[14]
Statutory Duties of Guardians and Attorneys
Although not discussed by the Court of Appeal in Palichuk, guardians and attorneys (substitute decision makers) may have a statutory duty to determine the validity of a will of an incapable person.[15]
Section 33.1 of the Substitute Decisions Act, 1992 (“SDA”) states:
33.1 A guardian of property shall make reasonable efforts to determine,
(a) whether the incapable person has a will; and
(b) if the incapable person has a will, what the provisions of the will are.
Subject to certain exceptions, section 35.1(1) of the SDA states:
35.1 (1) A guardian of property shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person’s will.
These provisions apply with necessary modifications to an attorney under a continuing power of attorney for property pursuant to section 38 of the SDA.
As noted by Professor Oosterhoff, pursuant to these provisions it may be necessary for guardians and attorneys in appropriate cases to seek a determination of the validity of a will.[16] It remains to be determined how courts will reconcile these statutory duties with the jurisdictional barrier and public policy reasons discussed by the Court of Appeal in Palichuk.
—
[1] Palichuk v. Palichuk, 2023 ONCA 116 at para 68.
[2] Palichuk v. Palichuk, 2023 ONCA 116 at para 63.
[3] Palichuk v. Palichuk, 2023 ONCA 116 at para 65 and 66.
[4] VanSickle Estate v. VanSickle, 2022 ONCA 643 at paras 1, 2, and 9.
[5] Palichuk v. Palichuk, 2023 ONCA 116 at para 68.
[6] Palichuk v. Palichuk, 2023 ONCA 116 at paras 64 and 65.
[7] Palichuk v. Palichuk, 2023 ONCA 116 at para 67.
[8] Oosterhoff, Albert et al., Oosterhoff on Wills, 9th edition, Thomson Reuters (Toronto, ON), page 119.
[9] Oosterhoff, Albert et al., Oosterhoff on Wills, 9th edition, Thomson Reuters (Toronto, ON), page 120; Kidd v. Canada Life Assurance Co., 2010 ONSC 1097 at para 69.
[10] Kidd v. Canada Life Assurance Co., 2010 ONSC 1097 at para 48.
[11] Kidd v. Canada Life Assurance Co., 2010 ONSC 1097 at para 48.
[12] Kidd v. Canada Life Assurance Co., 2010 ONSC 1097 at para 49.
[13] Palichuk v. Palichuk, 2023 ONCA 116 at para 70.
[14] Palichuk v. Palichuk, 2023 ONCA 116 at para 71.
[15] Oosterhoff, Albert et al., Oosterhoff on Wills, 9th edition, Thomson Reuters (Toronto, ON), page 121.
[16] Oosterhoff, Albert et al., Oosterhoff on Wills, 9th edition, Thomson Reuters (Toronto, ON), page 121.
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