Estate Litigation: Delay Can Make It Impossible To Prove A Will

Many estate litigation cases arise in situations where the deceased’s most recent will confers a benefit on a new beneficiary, or removes beneficiaries who were named in an earlier will. Evidentiary issues and the burden of proof are significant in such cases, especially where it is alleged that the deceased did not have testamentary capacity at the time of making the new will. Delay in pursuing the litigation can compound these issues, and in extreme cases, can make it impossible to determine whether the new will is valid, as in Orenchuk v. Dean, 2022 ONSC 4538.

In 1997, the deceased made a will that appointed one of his daughters, Teri, as estate trustee, and directed that the residue of his estate be divided between his three children equally. In 2001, the deceased made a new will that appointed his son, Peter, as estate trustee, and made Peter the sole beneficiary of the residue of the estate (with no bequests to Teri or her sister). The deceased died in early 2002, a few months after making the 2001 will.

Peter filed an application for appointment as estate trustee, and his sisters filed a notice of objection, on the basis that the deceased lacked testamentary capacity at the time of making the 2001 will, because he became incapable following a serious car accident in mid-2001. Pursuant to directions from the court, Peter delivered a statement of claim, seeking a declaration that the deceased had testamentary capacity at the time of making the 2001 will, and appointing Peter estate trustee in accordance with the 2001 will. Pleadings closed in the summer of 2002, but the estate litigation process then moved very slowly, often grinding to a halt. Eventually, in 2019, Teri and her sister brought a motion to dismiss Peter’s action for delay.

The motion was granted, on the basis that: (i) the 17-year delay was inordinate; (ii) the delay was inexcusable; and (iii) the delay was prejudicial to the defendant sisters, in part because records pertaining to the deceased’s mental and physical health had been destroyed. While Peter’s action was dismissed, the central question – whether the 2001 or 1997 will was valid – remained unanswered. Accordingly, Teri brought an application for directions, asking for confirmation that she could apply to be appointed as estate trustee, either on the basis on the 1997 will or an intestacy.

In granting the application, the court provided a useful summary of the principles governing applications for appointment as estate trustee, and the burden of proof on such applications. First, in exercising its jurisdiction over matters of probate, the function of the court is inquisitorial, rather than adjudicative: the court is obliged to determine which documents are entitled to be admitted to probate, rather than to simply adjudicate the dispute between the parties – while giving effect to the testator’s wishes, if possible. Second, where the validity of a will is contested, the will is to be proved in the manner directed by the court. If the court directs that the will be proved at trial, the burden of proof rests on the propounder of the will (Peter, in this case). Third, while the burden of proof may be satisfied with evidence that the will was duly executed with all requisite formalities, if the challenger adduces evidence of “suspicious circumstances”, the propounder’s burden of proof will not be met without evidence of the deceased’s testamentary capacity, knowledge and approval of the contents of the will.

The court concluded that the decision dismissing Peter’s action for delay effectively included a ruling that it was no longer possible to prove the 2001 will, and determined that, in the circumstances, the doctrines of issue estoppel and abuse of process should apply to prevent Peter from relying on the 2001 will in opposing Teri’s application for appointment as estate trustee.