Neuberger Estate et al., Re

• Jurisdiction: Ontario
• Judge: Gillese, van Rensburg and Miller, JJ.A.
• Date: 08 March 2016
• Citation: 2016 ONCA 191,(2016), 345 O.A.C. 378 (CA)
• Court: Court of Appeal (Ontario)

Neuberger Estate, Re (2016), 345 O.A.C. 378 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MR.014

In the Estate of Chaim Neuberger, deceased

Edie Neuberger in her capacity as the named Estate Trustee of the Primary Will of Chaim Neuberger and in capacity as the named Estate Trustee of the Secondary Will of Chaim Neuberger (applicant/appellant) v. Myra York in her personal capacity, in her capacity as the named Estate Trustee of the Primary Will of Chaim Neuberger, in her capacity as the named Estate Trustee of the Secondary Will of Chaim Neuberger and in her capacity as the Attorney for Property or Attorney for Property de son tort for Chaim Neuberger, Adam Jesin-Neuberger, Shawna Jesin-Neuberger, Jeremy Jesin-Neuberger, Jessica Jesin-Neuberger, Jaclyn Jesin-Neuberger, Sonny York, Spencer York and Laura York (respondents/appellant/respondents)

(C59813; C59918; 2016 ONCA 191)

Indexed As: Neuberger Estate et al., Re

Ontario Court of Appeal

Gillese, van Rensburg and Miller, JJ.A.

March 8, 2016.

Summary:

Neuberger died in 2012, leaving an estate worth over $100 million. Neuberger's long-standing intention had been to provide equally for his two daughters, Edie and Myra. He executed wills in both 2004 and 2010. Although both sets of wills left his estate to Edie and Myra and their children, the 2010 will allegedly resulted in Myra's share exceeding Edie's by about $13 million. Edie and her son (Adam) challenged the validity of the 2010 wills, alleging that Neuberger lacked testamentary capacity when he executed them. Myra and her children moved to have the wills challenges dismissed.

The Ontario Superior Court, in a decision with neutral citation 2014 ONSC 6706, granted the motion. Edie and Adam appealed.

The Ontario Court of Appeal allowed the appeal.

Estoppel - Topic 3

General principles - When available - Neuberger died in September 2012, leaving an estate worth over $100 million - In December 2013, his daughter (Edie) challenged the validity of his 2010 will, alleging that he lacked testamentary capacity - A motion judge dismissed the challenge, finding that Edie was estopped from challenging the validity of the will because of (1) the unexplained delay in bringing her challenge despite having had doubts as to Neuberger's capacity prior to 2011; (2) actions she had taken as estate trustee and holding herself out as an estate trustee to various professionals; and (3) the prejudice that would ensue to other beneficiaries who had taken steps based on the will - The Ontario Court of Appeal allowed Edie's appeal - There was no jurisprudential basis for applying the doctrines of estoppel by representation or convention to matters involving the validity of a will - There were also policy reasons for not allowing estoppel to be used in this manner - The court's responsibility to ensure that only valid wills were probated would be jeopardized - It could also lead to premature challenges or no steps being taken in the administration of an estate for fear of being deemed unduly dilatory or as having affirmed the validity of the will - Finally, there was no need to import estoppel into this area given the availability of an application under rule 75 of the Rules of Civil Procedure - See paragraphs 103 to 122.

Estoppel - Topic 1030

Estoppel in pais (by conduct) - By agreement - Estoppel by convention - [See Estoppel - Topic 3 ].

Estoppel - Topic 1071

Estoppel in pais (by conduct) - Representation - General principles - General - [See Estoppel - Topic 3 ].

Estoppel - Topic 1361

Estoppel in pais (by conduct) - Laches or delay - General - [See Estoppel - Topic 3 ].

Estoppel - Topic 1381

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - General - [See Estoppel - Topic 3 ].

Executors and Administrators - Topic 1137

Grant of probate or letters of administration - Proof of will in solemn form - Time for - [See Estoppel - Topic 3 ].

Executors and Administrators - Topic 1138

Grant of probate or letters of administration - Proof of will in solemn form - Parties - Status - Neuberger died in 2012, leaving an estate worth over $100 million to his two daughters (Edie and Myra) and their children - In December 2013, Edie applied to challenge the validity of Neuberger's will - In January 2014, Edie's son (Adam) also applied to challenge the validity of the will - A motion judge dismissed the challenges - She found that Adam was barred from pursuing his challenge because he was a "straw man" who came forward without knowledge of the estate or the wills, to support Edie's position in the litigation - The Ontario Court of Appeal allowed Adam's appeal - Adam's evidence was that he made an independent decision to commence his wills challenge and that his parents tried to talk him out of it - If the motion judge rejected Adam's evidence, she had to give some explanation for doing so - Moreover, it was an error in law to bar Adam from pursuing his wills challenge on the basis that he was a straw man - At the time that he began his challenge, probate had not been granted - Adam appeared to have a financial interest in the estate - Under rule 75.06 of the Rules of Civil Procedure, Adam had the right to bring his motion within Edie's personal application and ask that the will be proved in solemn form - He did not require direct or first-hand knowledge of the matters raised by Edie in her wills challenge in order to exercise that right - Nor did the fact that he was Edie's son disentitle him from pursuing that right - See paragraphs 123 to 125.

Executors and Administrators - Topic 1139

Grant of probate or letters of administration - Proof of will in solemn form - Practice - Neuberger died in 2012, leaving an estate worth over $100 million - One of his grandchildren (Adam) applied to challenge his 2010 will - A motion judge dismissed Adam's challenge - Adam appealed, arguing that the motion judge erred by failing to recognize his automatic right to seek proof in solemn form pre-probate as an interested person under rule 75.01 of the Rules of Civil Procedure - The Ontario Court of Appeal rejected this argument - An interested person could request proof in solemn form, but he could not require it - Rule 75.01 had to be read in conjunction with rule 75.06, which was permissive - It stated that the court "may" direct certain things - Thus, the court had discretion whether to order that a testamentary instrument be proved, and discretion over the manner in which the instrument was proved - In addition, an interested person had to meet some minimal evidentiary threshold before a court would accede to a request that a testamentary instrument be proved - Otherwise, estates would necessarily be exposed to needless expense and litigation - See paragraphs 80 to 88.

Executors and Administrators - Topic 1139

Grant of probate or letters of administration - Proof of will in solemn form - Practice - Rule 75.01 of the Rules of Civil Procedure stated that "An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs." - The Ontario Court of Appeal discussed the correct approach to an application under rule 75.06 - An applicant had to adduce or point to some evidence which, if accepted, would call into question the validity of the testamentary instrument that was being propounded - If the applicant failed in that regard or if the propounder of the testamentary instrument successfully answered the challenge, then the application should be dismissed - If the applicant successfully adduced or pointed to evidence that called into question the validity of the testamentary instrument which the propounder did not successfully answer, then the court would generally order that the testamentary instrument be proved - In determining the manner in which the instrument be proved, the court would have recourse to the powers under rule 75.06(3) - See paragraphs 89 to 96.

Executors and Administrators - Topic 1139

Grant of probate or letters of administration - Proof of will in solemn form - Practice - [See Estoppel - Topic 3 ].

Executors and Administrators - Topic 1140

Grant of probate or letters of administration - Proof of will in solemn form - Evidence and proof - [See second Executors and Administrators - Topic 1139 ].

Statutes - Topic 4985

Operation and effect - Enabling acts - Power coupled with duty - Permissive power - "May" - General - [See first Executors and Administrators - Topic 1139 ].

Cases Noticed:

Ottas Estate, Re, [2004] O.T.C. Uned. 404; 7 E.T.R.(3d) 221 (Sup. Ct.), refd to. [para. 67].

Otis v. Otis - see Ottas Estate, Re.

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 77].

Vout v. Hay - see Hay Estate, Re.

Smith Estate v. Rotstein et al., [2010] O.T.C. Uned. 2117; 56 E.T.R.(3d) 216; 2010 ONSC 2117, affd. (2011), 281 O.A.C. 30; 106 O.R.(3d) 161; 2011 ONCA 491, leave to appeal refused (2012), 433 N.R. 394 (S.C.C.), consd. [para. 92].

Travica v. Mailloux et al., [2009] O.A.C. Uned. 189; 46 E.T.R.(3d) 186; 2009 ONCA 279, consd. [para. 93].

Chappus Estate (Re) - see Travica v. Mailloux. et al.

Stefanik v. Stefanik, [2000] O.T.C. Uned. 905 (Sup. Ct.), consd. [para. 96].

Canadian Superior Oil Ltd. et al. v. Paddon-Hughes Development Co. Ltd. et al., [1970] S.C.R. 932, consd. [para. 105].

Ryan v. Moore et al., [2005] 2 S.C.R. 53; 334 N.R. 355; 247 Nfld. & P.E.I.R. 286; 735 A.P.R. 286; 2005 SCC 38, consd. [para. 105].

Leibel v. Leibel (2014), 2 E.T.R.(4th) 268; 2014 ONSC 4516, consd. [para. 105].

Oestreich v. Brunnhuber et al., [2001] O.T.C. 56; 38 E.T.R.(2d) 92 (Sup. Ct.), refd to. [para. 121].

Trotter Estate, Re (2014), 328 O.A.C. 167; 122 O.R.(3d) 625; 2014 ONCA 841, refd to. [para. 124].

Statutes Noticed:

Rules of Civil Procedure (Ont.) - see Rules of Court (Ont.).

Rules of Court (Ont.), rule 75.01 [para. 1]; rule 75.06 [para. 85].

Counsel:

Chris G. Paliare, Megan E. Shortreed and Jean-Claude Killey, for the appellant, Edie Neuberger;

Kimberly A. Whaley, Benjamin Arkin and Arieh A. Bloom, for the appellant, Adam Jesin-Neuberger;

Guy Pratte, Aaron Blumenfeld and Ewa Krajewska, for the respondent, Myra York in all capacities;

Clare E. Burns and Bianca La Neve, for the respondents, Sonny York, Laura York and Spencer York.

This appeal was heard on October 8 and 9, 2015, before Gillese, van Rensburg and Miller, JJ.A., of the Ontario Court of Appeal. Gillese, J.A., delivered the following judgment for the court on March 8, 2016.