COURT FILE NO.: CV-17-00010494-00ES DATE: 20200319 ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE ESTATE OF ELIZABETH BRISTOL, deceased
BETWEEN:
Stephanie C. L. Bristol Applicant – and – Berry Bristol Respondent
COUNSEL: Linda Tangri, for the Applicant, Responding Party Elizabeth De Yoe and Wade Morris, for the Defendant, Moving Party
HEARD: March 10, 2020
REASONS ON MOTION
JUDGE: C. Gilmore, J.
OVERVIEW
[1] This is the Respondent/Moving Party’s motion to dismiss the Notice of Application issued by the Applicant on June 6, 2019 as well as the ancillary Notice of Objection dated December 30, 2016 on the grounds that the Application is statute-barred.
[2] The Applicant argues that filing the Notice of Objection and accompanying Notice of Appearance was a “proceeding”, which was filed within the limitation period. Alternatively, the Applicant argues that she was self-represented until April 2019 and did not understand that she needed to issue an Application to crystallize the complaints set out in her Notice of Objection.
BACKGROUND FACTS
[3] The deceased, Elizabeth Bristol, passed away on December 6, 2016. The deceased had ten children. The Applicant is the deceased’s daughter and the Respondent her son.
[4] The deceased’s first will was prepared by her lawyer Andrew Fine in 2002. That will divided her estate equally between her ten children and named the Respondent as Estate Trustee. In 2004, the deceased made a new will (“the 2004 will”) dated October 20, 2004 in which she named the Respondent as the Estate Trustee and the sole beneficiary of her estate. Mr. Fine drew that will as well. The will specifically states that:
My son, Berry Bristol, has been of great assistance to me and after much thought I have decided to leave the residue of my estate to him alone. I have already helped my other children throughout their lives.
[5] After signing the 2004 will, the deceased signed an Acknowledgement addressed to Mr. Fine as follows:
I, the undersigned, do hereby acknowledge that I have directed you to prepare my Will by leaving the residue of my estate only to my son, Berry Bristol. I do not want to leave any special bequests, (other than the two extra burial plots), or any portion of the residue of my estate, to any of my other nine children. I have already helped my other children throughout their lives.
Dated at Toronto, etc.
[6] Mr. Fine’s complete file was disclosed, and he was cross-examined on his affidavit sworn July 23, 2019. Mr. Fine’s evidence was that if he had had any concern with the deceased acting under any pressure or influence, he would not have prepared the will. Further, it was his standard practice to assess the ability of the testator to understand the nature and extent of their property.
[7] Mr. Fine confirmed that his office practice was such that he would not have had Berry Bristol into his office for any part of the will procedure. He also confirmed that although he had no specific recollection of the Acknowledgement, he always prepared documents such as this when a parent testator gave instructions to exclude some or all of their children. [^1]
[8] Following the deceased’s death, the Applicant filed a Notice of Objection on behalf of herself and on behalf of four of her siblings (who are not parties to this Application). The Notice of Objection stated that the objectors objected to the issuance of a Certificate of Appointment of Estate Trustee to the Respondent on the following grounds:
The deceased lacked testamentary mental capacity at the time she executed her Will appointing the Respondent (Berry Bristol) as the estate trustee and the sole beneficiary of the estate.
Under undue influence of Berry Bristol, the deceased made dramatic change to the previous Will by removing nine siblings and leaving residue of her estate to Berry Bristol alone.
No provision, in the Will, is made for dependants.
[9] The Respondent hired a lawyer to assist him with the probate process. He signed an Application for Certificate of Appointment of Estate Trustee with a Will on January 29, 2017. On April 21, 2017 the Registrar issued a Notice that Objection Has Been Filed. The Registrar then issued a Notice to Objector on July 18, 2017 and the Applicant filed a Notice of Appearance on July 25, 2017 indicating that “I desire to oppose the issuing of a Certificate of Appointment for Estate Trustee for the reasons set out in the Notice of Objection filed.”
[10] During this period of time and up to April 2019, the Applicant did not have counsel on record. The Applicant’s sister Cheryl Bristol swore an affidavit on September 10, 2019. During her cross-examination on the affidavit, Ms. Bristol deposed that she and her sister (the Applicant) and her brother David went to see a lawyer, Mr. Avva Chima, in late December 2016. Mr. Chima prepared the Notice of Objection. He was not retained beyond that. [^2]
[11] In that same cross-examination, Cheryl Bristol insisted that Mr. Fine forged the signature on the Acknowledgment which was signed on the same date as the 2004 will. [^3]
[12] The Applicant’s evidence was that she was waiting for her brother to take a step in the probate proceeding. When he did not, she brought a Motion for Directions on April 23, 2019. She sought direction from the court as to what steps she should take. The court indicated that the Applicant should issue her Application within 45 days but without prejudice to the Respondent bringing a motion to dismiss on the grounds that the Application was statute-barred.
ISSUES AND ANALYSIS
When Does the Limitation Period Begin to Run?
[13] The relevant parts of sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (“the Act”) read as follows:
(4) Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
(5)(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[14] In Leibel v. Leibel, 2014 ONSC 4516 [^4] the court confirmed at paragraph 36 that a will speaks from the date of death and, as such, any proceeding must be taken within two years of the date of death, barring any discoverability issues.
[15] In this case there is no dispute that the Applicant knew of the contents of the 2004 will by at least December 7, 2016 and certainly by the date of filing the Notice of Objection on December 30, 2016.
[16] The Respondent pointed out that his sister Cheryl, who has sworn the main affidavit in this proceeding, was aware of the 2004 will as early as 2012 as she attached it as an Exhibit to a Guardianship Application she brought in relation to her mother in 2012. A copy of that Exhibit was reproduced in the Respondent’s Motion Record.
[17] I find that the Limitation Period in this case began on the date of death. However, if I am wrong and the Limitation Period began on the date of filing the Notice of Objection on December 30, 2016, limitation period issues still arise.
Are Any of the Steps Taken by the Applicant Prior to December 30, 2018 a “Proceeding” within the Meaning of the Limitation Act?
[18] It is clear from the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in Rule 1.03 that a “proceeding” is defined as either an action or application. An application includes a Notice of Application which would include a Notice of Application for Appointment of Estate Trustee with a Will.
[19] An issue arises as to whether the Notice of Objection filed on December 30, 2016 or the subsequent Notice of Appearance filed by the Applicant is a “proceeding” as defined by the Rules. I do not find that either of those documents qualify as a “proceeding” for the following reasons:
a. The Notice of Appearance is a required filing under Rule 75.03(5). If the Applicant had not filed a Notice of Appearance within 20 days of receiving the Notice of Objector, the court could proceed as if the Notice of Objection had not been filed. I find, therefore, that such a filing was intended to effectively preserve the status of the Notice of Objection but does not create a “proceeding” under the Act.
b. I accept the Respondent’s counsel’s argument that the Notice of Objection is a form of caveat. In the case of Re McDevitt, [1913] O.J. No. 789 [^5], the court confirms the following at paragraph 15:
A caution, or caveat, while in force, may stop probate or administration from being granted without notice to or knowledge if the person who enters it. A caveat being lodged – a warning should follow, and then if the person who lodged the caveat really intends to contest, he should cause an appearance to be entered. Even then, I do not say that the entering of an appearance would be instituting proceedings to set aside a will.
[Emphasis added.].
McDevitt makes it clear that no steps taken by the Applicant up to and including the filing of the Notice of Appearance in July 2017 can be construed as commencing a “proceeding” under the Act.
[20] The Applicant insisted that because she was self-represented and because the Respondent had taken no steps, she was forced to bring a Motion for Directions in April 2019. It was only on the motion date that she learned that she was required to actually issue an Application.
[21] While all of this is unfortunate, it does not permit the Applicant to escape the presumption in ss. 4 and 5 of the Act. Certainly, bringing a Motion for Directions is not a “proceeding” and cannot retroactively cure the Applicant’s timing problem. Of note is that the Motion for Directions itself was brought outside the limitation period.
Does Discoverability Apply to Delay the Running of the Two-Year Period?
[22] The Applicant asks the Court to consider fairness in this case and points to several documents on which she intends to rely to prove that her mother did not have the capacity to sign a will in 2004.
[23] Unfortunately, this motion is not centered on the issue of fairness. It is about a discrete legal issue and the tests to be applied on this set of facts.
[24] Discoverability relates to when the Applicant knew or ought to have known that the injury, loss, or damage occurred. Did the Applicant know of concerns related to undue influence or capacity as of December 30, 2016? Certainly she did based on the contents of her Notice of Objection. She had received a copy of the will shortly after the date of death (or knew of its contents).
[25] I find that the Applicant had the knowledge to commence a will challenge on or before December 30, 2016. She may have even known of the 2004 will in 2012 based on Cheryl’s Guardianship Application and Cheryl’s involvement in this Application. Further, the Applicant consulted with and retained counsel to prepare a Notice of Objection that contained her objections to issuing the Certificate of Appointment to the Respondent, including specific references to “undue influence” and a “lack of testamentary capacity.”
[26] I find that the Applicant’s claims were “discoverable” as early as December 7, 2016 and as late as December 30, 2016. I further agree with the statements in Leibel at paragraph 52 that “[T]o say that every next-of-kin has an innate right to bring on a will challenge at any time as long as there are assets still undistributed or those than can traced, would put all Estate Trustees in peril of being sued at any time.”
[27] Given all of the above, I find that the Applicant was in a position to move forward with her claims during the two-year limitation period. She may view this interpretation “unfair” but a strict approach to containing litigation must reasonably be what the Legislature intended when they changed the limitation period from six year to two years.
Can the Application Stand Because of its Claims for Declaratory Relief?
[28] The Applicant argues that her Application seeks only declaratory relief and there is therefore no applicable limitation period pursuant to s. 16(1)(a) of the Act.
[29] This position is not tenable. First, the Applicant seeks to remove the Respondent as Estate Trustee and substitute herself, as well as an accounting of estate assets and debts, and an indemnity for unreasonable expenses. Such claims cannot be considered anything but substantive and consequential relief.
[30] The Applicant seeks a declaration that the 2004 will was executed under undue influence, and that her mother lacked the testamentary capacity to execute it. She also seeks a declaration that the 2002 will is valid and should be restored and the estate distributed in accordance with its terms.
[31] I find that the Applicant cannot escape the consequences of ss 4 and 5 of the Act by framing her relief as declaratory. Will challenges cannot be framed as declaratory relief as they are not stand-alone court decisions. Threshold tests with supporting evidence must be met before findings in relation to undue influence and testamentary capacity can be made.
ORDERS
[32] Given all of the above, the Respondent’s motion is granted and the Application dated June 6, 2019 is dismissed as being statute-barred.
COSTS
[33] The Respondent seeks all-inclusive partial indemnity costs of $12,500. The Applicant would have sought costs in excess of that if successful.
[34] Counsel for the Applicant submits that her client is impecunious and had valid concerns about the 2004 will. If costs are awarded, they should be paid out of the estate.
[35] The Respondent does not agree. Awarding costs payable by the estate is no longer the norm. The Respondent insists that any costs be paid by the Applicant personally.
[36] This is an unfortunate situation in which the Applicant is unable to pursue her claims because she did not do so in accordance with legislated time limits. While in normal circumstances, the Respondent would be entitled to costs, a difficult result would be produced if the Respondent receives costs from his impecunious sister and receives his mother’s entire estate. No costs are ordered.
C. Gilmore, J.
Released: March 19, 2020