Motion judge did not err by making determination about codicils in context of summary judgment

Estates and Trusts – Estates – Revocation and alteration of will

Married couple with three grown children owned five properties. Couple executed will providing that, upon both their deaths, their estate would be divided equally among their three children. After couple died, one of their children, K, asserted that her parents had executed codicils to their wills providing that she was to inherit two of five properties. K did not tell her other siblings about these purported codicils until after both parents had died. Another child, H, brought application seeking determination whether codicils were valid. K brought motion for summary judgment, seeking dismissal of H’s claim on basis that it was statute-barred pursuant to Limitations Act, 2002 (Act). H brought cross-motion for summary judgment on her application. Motion judge decided that both K’s motion and H’s cross-motion were appropriate for summary judgment. On K’s motion, motion judge held that H’s application for declaration on validity of codicils was not barred by Act, and applied s. 16 (1)(a) of Act, which provides that “there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought”. On H’s motion, motion judge held that purported codicils were invalid. K appealed. Appeal dismissed. Motion judge did not err by making determination about codicils in context of summary judgment motion. Both parties brought summary judgment motions, and both filed affidavits and attached exhibits. Motion judge applied Hryniak v. Mauldin test and found that trial was not required because court could make fair and just determination of issues relying on written record. Motion judge did not err in her analysis and conclusion on limitation period issue. In contrast to recent case law, in this case H sought neither consequential relief sought in those cases nor did anyone do anything to propound Will. Will sat for seven years, presumably because siblings were all trying to work out their disagreements. In these circumstances, H was entitled to seek declaratory relief, simply to establish validity, or lack of validity, of codicils; to define rights of parties in order to avoid future disputes.

Piekut v. Romoli (2020), 2020 CarswellOnt 334, 2020 ONCA 26, G.R. Strathy C.J.O., J.C. MacPherson J.A., and M. Jamal J.A. (Ont. C.A.); affirmed (2019), 2019 CarswellOnt 4723, 2019 ONSC 1190, Dietrich J. (Ont. S.C.J.).

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