September 29, 2014

When someone tries to challenge a will in court, undue delays on the challenger’s part can be fatal to their claim. The Rules of Civil Procedure, Ontario’s legal procedure guidelines, say that a civil claim can be dismissed for delay if, after the initial pleadings stage, the action isn’t set down for trial within six months. However, before an action is dismissed, the court applies a three part test to decide whether dismissal is fair in the circumstances. In the recently decided case of Ali v. Fruci, 2014 ONCA 596, the Ontario Court of Appeal reversed a lower court decision that had dismissed a will challenge for delay.

In the case, the plaintiff Lorilee Ali brought an action in 2008 contesting two wills that were made by her grandaunt, Florence Blackburn, who died in 2007. Blackburn had three wills, the latter two removing Lorilee as executrix and beneficiary. After pleadings were completed, Ali made some effort to obtain documents, but otherwise she did nothing further to advance the case. As a result of Lorilee’s inaction, one of the defendants and beneficiaries brought a motion under Rule 24.01 to dismiss the case. The lower court judge agreed with the defendant, and dismissed Lorilee’s action.

On appeal, the Court of Appeal applied the well-established three part test: (1) Was the delay inordinate or unreasonable? (2) Was the delay inexcusable? (3) Would the defendant be prejudiced in allowing the trial to go forward? The court agreed with the lower court on the first two questions, finding that the 5-year delay was somewhat unreasonable and that Lorilee did not have a good reason for her delay in pursuing the claim. However, the court disagreed with the motions judge who had found both presumed and actual prejudice. The Court of Appeal held that because there was a 5-year delay, there was presumed prejudice. However, they held that there was no actual prejudice because there was still good evidence that could be presented at the hearing of the will challenge. The evidence included information from two doctors who had examined Blackburn while she was alive and who were still able to testify despite having retired from practice.

The case demonstrates the reluctance courts sometimes have in denying a party’s right to have their will challenge heard in court. Even if years have passed after the parties exchange pleadings, a case may still be able to proceed. However, litigants still need to be aware that some delays may seriously harm their case, and pursuing a claim without delay is generally the most prudent course of action.