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

by Robin Spurr, Published: November 07, 2014

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.

This case concerned a will challenge commenced by the son, Blake, more than two years after his mother, Eleanor, had died.  Blake was an adult and lived in California.  Eleanor had another a son, Cody, who was also an adult and living in California.  Eleanor was married to Lorne, but they had been separated for 30 years at the time Eleanor died.  When they separated, Cody went to live with Lorne and Blake lived with Eleanor.

In previous wills, Eleanor had left her considerable estate solely to Blake.  In her last will, and the one immediately preceding it, Eleanor gave the majority of her estate to Blake, but included a sizeable inheritance for Cody.  Blake contested Eleanor’s last will on the grounds that his mother was unduly influenced and/or lacked capacity to make the will.  Eleanor died in June 2011, and Blake commenced his application in September 2013.  Justice Greer ultimately held that Blake’s claim was out of time as it was more than two years after Eleanor’s death.

There has been a lot written about this decision and how it reconciles with past decisions and what this means going forward. These are all interesting and relevant discussions to have, but I think it is also important to look not just at the law of this case but also the facts and how they contributed to the outcome of the case.

At the recent 17th Annual Estates and Trusts Summit, Felice Kirsh spoke to estates practitioners about the Leibel case and highlighted why this particular fact pattern made it the prime case for this ruling.  First and foremost, Blake did not attend his mother’s funeral.  This is very poor form, especially when you then go before the court claiming that you did not get enough money from your mother’s estate. As Felice said, this is not the way to get the court’s sympathy.  Secondly, Blake was active in helping the estate trustees liquidize estate assets in order to receive cash from the estate.  He actively participated in the selling of Eleanor’s Toronto home and a condo in Florida, both of which were gifted to him in the will, and he accepted the several millions of dollars that the properties sold for.  While there is the legal issue of estoppel that comes into play as result of these actions, it is also just common sense that you should not take everything you can from the estate and then turn around and ask the court to set aside the will because you would now like some more.

These facts were obviously not favourable for Blake and likely worked against him in this case.  The moral of the story is that if you are going to challenge a will, make sure you do it within two years of the death of the testator, and always go to the funeral.