Estate Litigation Blog

Limitation Period on a Will Challenge: Shannon v. Hrabovsky

by Lisa Fenech, Published: November 16, 2018

Tags: 2018 onsc 6593,  discoverability,  limitation period,  limitations act,  shannon v. hrabovsky,  will challenge

How much time does a will challenger have to commence proceedings? The safest answer is: within two years of the date of death of the deceased. If a will challenger wants to commence proceedings after two years of the date of death, they will need to convince a court that the principle of discoverability applies in will challenges and that it applies to the circumstances of their case.

Costs in Will Challenge Litigation

by Rob Levesque, Published: September 11, 2016

Tags: costs,  estate,  litigation,  will challenge

It is well-settled that in estate litigation the unsuccessful party must generally pay some of the successful party’s costs – this is often referred to as the “loser pays principle”. 

Importantly however, the loser pays principle is subject to certain exceptions that are unique to estate litigation.   For instance, where there is a genuine dispute about the validity of a will, even an unsuccessful party may be awarded costs out of the estate.  The rationale for this exception is that it is important for the courts to give effect to valid wills that reflect the intentions of competent testators.

That doesn’t mean that the parties to every will challenge should expect that they will receive their costs from the estate, as illustrated by the recent case of Sweetnam v. Lesage.  In that case, the testator had left a will disinheriting his daughter, and leaving the entirety of his substantial estate to his fishing buddies.  At the conclusion of a long trial, the court found that the deceased suffered from delusions that caused him to disinherit his daughter.  As a result, the deceased’s will was declared invalid, and his entire estate passed to his daughter.  The fishing buddies received nothing.

When it came to decide the issues of costs, the Court applied the loser pays principle in ordering the unsuccessful party to pay a portion of the daughter’s legal costs.  Moreover, the Court refused to allow the unsuccessful party to recover any of her own costs from the estate.  The Court acknowledged that an unsuccessful party may be awarded costs out of the estate in appropriate cases, but noted that in this case the unsuccessful party had rejected a number of reasonable settlement offers made by the daughter.  Furthermore, since the daughter received the entire estate as a result of the will having been declared invalid, ordering the unsuccessful party’s costs out of the estate would be the same as ordering the daughter to pay the costs personally.   

What you need to know before starting a will challenge: Leibel v. Leibel

by Robin Spurr, Published: November 07, 2014

Tags: estate litigation,  estates and trusts summit,  felice kirsh,  leibel v. leibel,  will challenge

There has been a lot of buzz in the legal community recently about the case of Leibel v. Leibel (reported as Leibel v. Lewis), which was decided by the Honourable Justice Greer in August of this year.  The reason for all the legal chatter is that this case clarified whether there is a limitation period on will challenges. It turns out, according to Justice Greer, that the regular two-year limitation period set out in the Limitations Act, 2002 applies equally to will challenges as it does to any other civil litigation.

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