Ontario Court of Appeal says will cannot be challenged while testatrix still lives

The case concerned Nina Palichuk and her two daughters Linda and Susan. In September 2020, Nina executed a will that disinherited Linda and named Susan as the main beneficiary of her estate. She also signed a transfer and declaration of trust transferring her home to Susan as a bare trustee, and two powers of attorney (PoAs) for property and personal care with Susan as sole attorney.

When Linda Palichuk learned this, she went to court seeking a declaration that her mother was incapable of managing property and asking to have herself appointed as her mother's guardian. She also alleged that Nina had been incapable of executing the deeds executed in September 2020. She asked the court for directions regarding these instruments.

Her mother's response was to bring her own application to have Linda removed as co-signatory to her investment account. During the litigation, she agreed to be assessed by a geriatric psychiatrist, who found her to have capacity to make a will and grant or revoke PoAs. The court duly dismissed Linda's claims. It held that the validity of the will was contingent on Nina's death, and since she was still alive and capable she could change it at any time, resulting in a waste of judicial time and resources.

Linda Palichuk appealed, arguing that the application judge had erred in failing to address the issue of undue influence. However, the Court of Appeal dismissed her appeal because the validity of a will depends upon a future contingency, namely the testator's death, while s.22 of the Succession Law Reform Act provides that a will speaks from death.

The appellate court also cited public policy reasons to prohibit challenges to a will during a testator's lifetime. Allowing them would result in the courts being inundated with litigation that is merely hypothetical, as the testator could change the will as often as they like before death and there would be no way to determine what property would be left to distribute. Moreover, there would be the additional potential for re-litigation after the death.

The judgment also contains helpful commentary from the appellate court on capacity issues in guardianship applications, granting PoAs and in making transfers of property.

Sources

• Lerners
• CANLII