September 27, 2016 By: Paul Taylor-Sussex

The distribution of an estate can be a divisive issue for families. This is particularly the case where a large amount of wealth is involved. A recent decision by the Ontario Court of Appeal, Neuberger v. York, is a useful illustration of this.

The case concerns the primary and secondary wills of Chaim Neuberger, which were executed in 2004 and 2010 respectively. Mr. Neuberger was the head of a real estate empire worth over $100 million, and he had always intended to divide his estate equally among his two daughters, Myra York and Edie Neuberger. When he passed away in 2012, Myra and Edie became co-estate trustees.

However, Edie alleged that the 2010 wills resulted in Myra receiving significantly more than herself, to the tune of $13 million. Edie initiated legal proceedings challenging the validity of the 2010 wills, arguing that her father lacked testamentary capacity when he executed them, and also that there were suspicious circumstances at the time.

Meanwhile, her sister Myra moved to have the challenge dismissed, on the basis of estoppel by representation and estoppel by convention. That is, she argued that Edie had delayed in questioning her father’s capacity and had even taken advantage of some aspects of the 2010 will. In doing so, Edie had effectively acknowledged the validity of the wills; therefore, she should be prevented from proceeding. In 2014, the lower court judge agreed with Myra and denied the challenge. Edie later appealed this decision to the Ontario Court of Appeal.

The Appeal Court ended up overturning the lower court’s decision, with Justice Gillese arguing that the doctrine of estoppel is not applicable in probate matters, and does not bar a will challenge from succeeding. She also said that it was not reasonable to expect a successful will challenge to be made within two years after a testator’s death. It places challengers in an awkward position, where they would “either have to bring a premature will challenge … or take no steps in the administration of the estate while investigating the testator’s capacity, for fear of being deemed unduly dilatory or as having affirmed the validity of the will”. In striking out the lower court’s decision, the judgement allows Edie to pursue her challenge of the wills on its own merits.

The Neuberger family is well-known in Toronto, and this legal battle has no doubt attracted unwanted media attention. It is vital that you know your rights and obligations when assessing wills and debating whether to challenge them, so that you get it right the first time.

Have a question about challenging a will? Contact our Wills and Estates Group, who will be able to advise on the best course of action.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2018 Nelligan O’Brien Payne LLP.