Estate Litigation Blog
What’s the “issue” with not updating your will?
by Matthew Rendely, Published: May 16, 2017
On Monday, May 1, 2017, the Honourable Douglas K. Gray of the Superior Court of Justice in Ontario held in the case of Henry Koziarski, as Estate Trustee of the Estate of Jadwiga Koziarski v Jesse Sullivan, 2017 ONSC 2704, that Jesse Sullivan (“Jesse”) did not fall under the class of “issue” as defined in his grandmother’s will.
Jadwiga Koziarski (“Mrs. Koziarski”), Jesse’s grandmother, made a last will and testament dated December 14, 1977. At the time Mrs. Koziarski made her last will she had two children and no grandchildren. Prior to the enactment of legislation in 1978, the common law held that the definition of “issue” or “child” (i.e., descendant) within a will only include children born within a lawful marriage (i.e., “legitimate” children), unless the wording of a will or circumstantial evidence demonstrated that the testator had a contrary intention.
Mrs. Koziarski’s will was basic: the residue of Mrs. Koziarski’s estate was to be left entirely to her husband. If Mrs. Koziarski’s husband should predecease her, Mr. Koziarski’s estate was to be divided into equal shares and distributed between her two children. However, in the event that any of Mrs. Koziarski’s children should predecease her, the predeceasing child’s share was to be distributed to his or her “issue” in equal shares per stirpes (i.e., divided in equal shares among the predeceasing child’s total living children at the time of the testator’s death).
Jesse was born to Mrs. Koziarski’s son eleven years after Mrs. Koziarski made her last will. Jesse’s father and mother had a short relationship but never married. Jesse’s father later married a different woman and had a “legitimate” daughter named Nicole. Jesse’s father predeceased Mrs. Koziarski. Pursuant to the terms of Mrs. Koziarski’s will, Jesse sought to inherit half of his father’s share of his grandmother’s estate, and the other half was to be distributed to Nicole.
Jesse’s uncle, Henry Koziarski in his capacity as Estate Trustee of the Estate of Jadwiga Koziarski, brought an application for the opinion, advice or direction of the Court to determine whether Jesse was entitled to receive half of his father’s share in Mrs. Koziarski’s estate.
In 1978, the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”), as it is now known, remedied the gap in the common law, which affected children born outside of a marriage. The SLRA provides that, there is alegal presumption that any will made on or after March 31, 1978 in Ontario containing the terms “issue” or “child” includes persons born outside of marriage unless the testator’s contrary intention is shown.
Mrs. Koziarski’s will did not express any intention for children born outside of a marriage to be included within the class of “issue”. Further, Mrs. Koziarski’s lawyer did not submit sufficient circumstantial evidence for the Court to determine that Mrs. Koziarski intended to include children born outside of a marriage, such as Jesse, in her will. Consequently, Justice Gray held that the SLRA did not bring Jesse within the class of “issue” under the terms of his grandmother’s will, since Mrs. Koziarski’s will pre-dated March 31, 1978. However, Justice Gray recognized that had Mrs. Koziarski simply updated her will any time between March 31, 1978 and her date of death on February 15, 2016, Jesse would have been legally presumed to fall within the class of “issue” under his grandmother’s will.
Justice Gray preferred to strictly interpret the SLRA rather than invalidate Mrs. Koziarski’s will to protect Jesse’s interests on grounds of public policy that Mrs. Koziarski’s will ought not to discriminate between “legitimate” and “illegitimate” children. Although Justice Gray recognized that a distinction between children born inside or outside of a marriage offends societal norms, his Honour favoured legislative deference over judicial activism. While Justice Gray’s decision is legally correct, it may have sweeping consequences whereby other groups of historically disadvantaged persons are unintentionally prevented from benefitting under the wills of their family members and loved ones.
Similar to the SLRA, the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) provides that any will made in Ontario on or after November 1, 1985 that uses the term “issue” or “child” includes adopted persons. Effectively, the CLRA precludes adopted persons from benefitting under a will made in Ontario before November 1, 1985 if a testator’s contrary intention cannot be demonstrated on the face of a will or by circumstantial evidence. Based on Justice Gray’s decision, this legislative gap in the CLRA may lead to an influx of future claims by unintentionally overlooked hopeful beneficiaries.
In summary, there are many issues with Justice Gray’s strict interpretation of the class of “issue” under Mrs. Koziarski’s will, none of which include her own grandson.
This case is a strong reminder to annually review your will to ensure that its terms align with your testamentary intentions and familial circumstances.
Recent Posts
- Our law clerk Clare Aikins teaches Estates Law Course
- Felice Kirsh and Mitchell Rattner speak about Section 3 Counsel at OBA Conference
- Further Suspension of Limitation Periods and Statutory Deadlines
- Estate Litigation: Using Technology to Adapt
- Suspension of Limitation Periods and Statutory Deadlines Amid COVID-19 Pandemic
- The Courts and COVID-19
- Virtual Witnessing of Wills
- We are open during COVID 19 pandemic
- Felice Kirsh: Not every issue is worthy of a passing of accounts
- Felice Kirsh discusses the importance of record-keeping by estate trustees
- Sender Tator on Dependant Support cases and "Egregious Conduct"
- Improper Conduct and Dependant Support
- Felice Kirsh on why DIY wills are a recipe for disaster
- Felice Kirsh, Jordan Oelbaum, and Sender Tator named to Best Lawyers 2020
- Felice Kirsh discusses how lawyers should prepare their clients for mediation
- Felice Kirsh discusses the benefits of evaluative mediators
- Felice Kirsh on "Is my estate dispute suited for mediation?"
- Felice Kirsh discusses the benefits of mediating estate disputes
- Presentation at the MCBNA
- Top 10 Wills, Trusts and Estates Boutique
- No Two-Year Limitation Period for Passing of Accounts
- Limitation Period on a Will Challenge: Shannon v. Hrabovsky
- Make a Will Month
- Felice Kirsh discusses the perils of finding heirs
- The partners at SKOT LLP are Lexpert-ranked
- Probate and Privacy
- Buzz Aldrin Guardianship Dispute & the Importance of Planning for Incapacity
- The expensive consequences of being unreasonable in estate litigation
- Legally Valid Gifts
- Powers of Attorney - Common Myths
- Costs in Estate Litigation
- Capacity to reconcile or divorce
- What’s the “issue” with not updating your will?
- Top 5 Wills, Trusts and Estates Boutiques in Canada
- Mutual Wills v. Mirror Wills
- Costs in Will Challenge Litigation
- Estate Planning - Digital Assets
- 2016 Amendments to the Income Tax Act – Graduated Rate Estates and Qualified Disability Trusts
- Capacity to Enter into Contracts
- Court of Appeal overturns "racist will" decision
- Best Lawyers
- Costs Award Against Power of Attorney Personally
- Applications and Actions: dismissal for delay
- Schnurr Kirsh Oelbaum Tator LLP is heading east!
- Spence v. BMO Trust Company: the case of the racist father
- Top 5 Wills, Trusts and Estates Firms in Canada
- Quinn v. Carrigan: "No litigation outcome is inevitable"
- What you need to know before starting a will challenge: Leibel v. Leibel
- Do the claims of dependants have priority over the claims of other creditors?
- Estate Administration and Automatic Vesting
- Elizabeth Bozek to Chair OBA program "Complex Passing of Accounts"
- Jordan Oelbaum speaks about the discovery process at Osgoode Hall Law School
- Felice Kirsh speaks to financial advisors about best practices
- Best Lawyers for 2015
- Felice Kirsh to chair conference at Osgoode Hall Law School
- Parents have testamentary freedom
- Pro Bono Students Canada's Wills Project
- Leading practitioners
- Choose a power of attorney you trust
- Elizabeth Bozek chairs seminar on the Consent and Capacity Board
- Consider whether a passing of accounts is worth it
- Best Lawyers for 2014
- When estate litigation gets tense, lawyers must stay cool
- Bar Admissions Fall 2013
- Brian Schnurr, Felice Kirsh and Jordan Oelbaum named to Best Lawyers 2013
- OBA Estates and Trusts Dinner
- Trust Company Best Practices
- Brian Schnurr and Felice Kirsh named to Best Lawyers 2012
- Best Lawyers Awards Brian A. Schnurr 2011 Lawyer of the Year, Trust and Estates - Toronto
Tags
- "issue"
- 2017 onsc 2704
- 2018 onsc 6593
- accounts
- advocatedaily
- application for orders and directions
- armitage v. the salvation army
- as estate trustee of the estate of jadwiga koziarski v jesse sullivan
- as estate trustee of the estate of jadwiga koziarski v jesse sullivan 2017 onsc 2704
- attorney
- automatic vesting
- bad faith
- beneficiaries
- best lawyers
- best lawyers award
- boutique law firm
- bowmanville
- brian schnurr
- c. c.12
- c. s.26
- canada lawyer magazine
- canadian lawyer
- canadian lawyer magazine
- capacity
- case comment
- cheque
- children born outside of marriage
- children's law reform act
- children’s law reform act
- community engagement
- compensation
- conference
- conferences
- consent and capacity board
- contract law
- corona
- coronavirus
- corporate trustee
- costs
- court
- courts
- covid
- covid 19
- covid-19
- creditors
- creditors' relief act
- depandant
- dependant support
- dependants
- digital assets
- discoverability
- discovery
- dishonesty
- donee
- doner
- elizabeth bozek
- emergency
- emergency order
- equalization
- estate
- estate administration
- estate litigation
- estate planning
- estate trustee
- estate trustees
- estates
- estates administration act
- estates and trusts summit
- estates and trusts toronto
- estates boutique
- estates list
- executor
- executors
- felice kirsh
- fiduciary
- fiduciary duty
- financial advisors
- fraud
- gifts
- graduated rate estate
- guardianship
- heirs
- henry koziarski
- husband
- ilco
- incapable
- incapacity
- income tax act
- inheritance
- inter vivos
- intestacy
- issue
- jordan oelbaum
- law clerks
- leading lawyers
- leibel v. leibel
- lexpert
- limitation
- limitation period
- limitations act
- litigation
- make a will month
- mcbna; presentation; estates
- mediation
- mirror wills
- misappropriation
- misconduct
- mortgage
- mutual wills
- ontario bar association
- osgoode hall
- pandemic
- passing of accounts
- poa
- power of attorney
- powers of attorney
- privacy
- probate
- public policy
- qualified disability trust
- r.s.o. 1990
- rob levesque
- sandra schnurr
- sender tator
- shannon v. hrabovsky
- shnurr kirsh oelbaum tator
- shnurr kirsh oelbaum tator llp
- slra
- spouses
- substitute decisions act
- succession law reform act
- superior court
- superior court of justice of ontario
- support
- suspension
- tax
- tax planning
- testamentary capacity
- testator
- top 10
- top 5
- toronto
- trial
- trust and estates toronto
- trustee
- trusts
- trusts and estate toronto
- trusts and estates
- trusts and estates toronto
- virtual
- wall v. shaw
- wife
- will challenge
- will drafting
- will litigation
- wills
- wills and estates
- wills trusts and estates
- witnessing