This post discusses the recent decision of the Court of Appeal for Saskatchewan in Walker v Hunter, 2024 SKCA 34. This decision offers an illustration of when a lawsuit may be struck out, on the basis that it is statute barred (i.e. commenced too late). Such a decision is a reminder of the harsh legal consequences which can flow from a limitation period.

Background:

To understand the reasons of the Court, it is necessary to review the underlying background:

1. This appeal related from a dispute between siblings relating to their potential entitlement to farmland once owned by their father, David Hunter, who died October 19, 1998, and his wife, Gloria Hunter, who died March 13, 2007;
2. Gloria and David, had six children. Four of them alleged that certain land was held in trust. These parties were:

1. Lynda Walker;
2. Brian Hunter;
3. Murry Hunter; and
4. Velvet Clark.
   The above are the “Appellants”.

3. A respondent party, who they sought a ruling against, was another sibling, Bruce Hunter.
4. David and Gloria had a sixth child, Lorne Hunter, who died December 13, 2007. The executors of Lorne’s estate were also named as respondents. There were other various respondents as well;
5. The historical context was that David and Gloria had acquired title to seven and one-half quarter sections of farmland while operating their family farm. Prior to his death, David transferred title to most of that farmland to the below:

1. To himself, Lorne and Bruce, as joint tenants, or
2. To himself, Gloria, Lorne and Bruce, as joint tenants; or
3. David also transferred a small portion of the land to Bruce and Lorne as joint tenants.

6. For that reason, when first David, then Gloria, and finally Lorne died, title to all these lands passed by way of survivorship to Bruce. These disputed lands are the “Lands”.
7. In this way, Bruce, as the last survivor, finally acquired title to the subject Lands and, on April 1, 2008, transferred that title to himself and to Diane (Lorne Hunter’s surviving former wife) as joint tenants;
8. On February 22, 2018 – more than nine years after the transfers to Bruce and Diane – Lynda, Brian, Murry and Velvet filed an originating application. It alleged that David had always intended that each of his six children should receive one quarter of Land, from the Lands, and that the Appellants had been wrongfully disinherited by Bruce;
9. Lynda, Brian, Murry and Velvet alleged that David and Gloria intended that Bruce and Lorne would be entitled to continue to farm the Lands but only until they ceased farming, when it was to be shared equally between each of their six children;
10. The originating application alleged that Bruce held the Lands in trust and that Bruce and Diane had been unjustly enriched;

Limitation period issue, and the Chambers Decision:

11. On April 7, 2021, the respondents applied for a determination that the originating application had been commenced outside of the limitation period;
12. In a fiat dated June 2, 2021, a judge of the Court of Queen’s Bench (“Chambers judge”) found that there was no evidence of fraudulent concealment as alleged by the Appellants and that the two‑year limitation period fixed by s. 5 of The Limitations Act, SS 2004, c L‑16.1 (“Act”) had expired in May 2010;
13. The Chambers judge found that she did not need to determine if there was a resulting trust. She found only that if there was, it was breached on April 1, 2008, when the Lands were transferred to Bruce and Diane as tenants in common. The Chambers judge also held that, if there was such a trust, the breach was discovered by the Appellants on or about May 12, 2008, and that the two-year limitation period specified by 5 of the Act would accordingly have expired in the normal course in May 2010;
14. In the result, the Chambers judge ordered that the originating application be struck;
15. Lynda, Brian, Murry and Velvet appealed the Chambers decision, alleging that the Chambers judge erred in her identification of the test for fraudulent concealment under s. 17 of the Act;
16. The Appellants also appealed on a separate issue, being that the Chambers judge had erred in dismissing their request for the respondents to provide an estate accounting in Estates of David Hunter and Gloria Hunter. That aspect of this decision is not discussed in this post.

Issue:

The primary issue on appeal was whether the limitation period had expired before the originating application was brought.

Decision of the Court of Appeal:

The Court of Appeal held that the limitation period had indeed expired, and thus the originating application in relation to the claim of breach of trust could not be maintained.

We begin by surveying what is a limitation period, and how it can be extended by any fraudulent concealment. Ordinarily, the Act provides that most claims must be brought within two years of a claimant discovering a number of things, including the below facts:

1. That they have suffered loss;
2. That it was caused by an act which is the subject of the claim; and
3. That a legal proceeding would be an appropriate means to remedy this act.

However, the two-year limitation period can be extended if the proposed defendant has wilfully concealed certain things from the claimant, such as the fact that an injury occurred by the act of the defendant, or that a proceeding would be an appropriate means to remedy the injury.

Concealment

17 The limitation periods established by this Act or any other Act or regulation are suspended during any time in which the person against whom the claim is made:

(a) wilfully conceals from the claimant the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made; or

(b) wilfully misleads the claimant as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

The Court of Appeal took the opportunity in Walker, to outline what elements are required to show concealment and trigger the operation of s. 17. The Court in Walker held below:

[50] I am of the same opinion in relation to s. 17. Section 17 does not require that a special relationship exist between the party asserting the claim and the party alleged to have acted or failed to act in a manner that tolls a limitation period under this section. However, it does require proof that the wrongdoer wilfully concealed facts specified in s. 17(a) or wilfully concealed the appropriateness of a proceeding as described in s. 17(b). There is no additional requirement to establish unconscionability, and unconscionability absent such facts does not engage s. 17.

[emphasis added]

In passing, the Court of Appeal held that the Chambers judge had misstated the test for s. 17. However, the Court held that this misstatement of the test made no difference to the ultimate outcome. That is, under the facts in Walker, s. 17 was not triggered. This is what the Chambers judge also had found (albeit on the wrong test).

That means that the bottom line decision of the Chambers judge, on the limitation period issue, was correct. The Court of Appeal held that this was so for two reasons.

First, there simply was no evidence that Mr. Ernst, an executor of Lorne Hunter’s estate, had wilfully concealed materials facts from the Appellants, as the Appellants had alleged:

[52] However, the fact that the Chambers judge erred in this way does not mean that this appeal should be granted in relation to this issue. That is so for two reasons. First, as I have explained, the Chambers judge held that, regardless of whether there was a resulting trust that created a special relationship, “without evidence that Mr. Ernst wilfully concealed from the applicants the possibility of a resulting trust, there can be no basis to claim that fraudulent or wilful concealment arose so as to suspend the limitation period”. She also held that there was not only “no evidence to suggest that Mr. Ernst wilfully concealed the possibility of a resulting trust” but also “no evidence of Mr. Ernst’s intention whatsoever” (at para 42).

Second, the Court of Appeal held that the record showed that the Appellants knew or ought to have known all of the things, needed to bring a claim, in 2008. This knowledge, back in 2008, meant that s. 17 could not avail them. The Court of Appeal held that s. 17 does not suspend the operation of a limitation period, if the claimant already knows the material facts needed to trigger the limitation period:

[58] I agree with this reasoning. The fact that the appellants knew or ought to have known all of the things listed in s. 6(1) in 2008 meant that s. 17 could not avail them. Section 17, like the equitable doctrine, does not suspend the operation of a limitation period from the day the potential claimant knew or, absent concealment within the meaning of s. 17, ought to have known of the matters listed in s. 6(1).

Conclusion:

The Court of Appeal upheld the decision of the Chambers judge on the limitation period, and found that the application relating to the alleged breach of trust, was statute barred.:

[63] In the result, I have concluded that the Chambers judge erred in law as to the interpretation of s. 17 of the Act. However, that error had no effect on her decision to strike the originating application as it related to the claim for relief based on an alleged breach of trust. The Chambers judge did not err in finding that the limitation period relating to that claim had expired, as there was no wilful act or omission within the meaning of s. 17. The appeal of the decision to strike the originating application in relation to the trust claim must accordingly be dismissed.

[emphasis added]

The recent Saskatchewan King’s Bench decision in Haines v Kuffner Estate is an example of the Court’s ability to validate a document, which may not have been executed with all the normal formalities. This flexibility offers the ability to ensure, as far as possible, that the testamentary wishes of a dying person are upheld.

Background:

The background of Haines involved the below facts:

1. The deceased was Kim Kuffner (“Deceased”). The Deceased, while hospitalized and near death, sent a message (“Message”) on her iPad to her siblings, which she titled “My holographic will;”
2. This Message named an executor, being Rheanne Haines, and provided instructions for the distribution of the Deceased’s estate. The Message read as follows:

My holographic will

Rheanne Haines to be executor.

House and contents to Ryan Haines.

Balance of investments to be split 60% to Ryan Haines and 40% to Rheanne Haines. Rheanne to be pet guardian.

May 19, 2023. Kim Kuffner

3. The Deceased had no previous will, spouse, or children.
4. Ordinarily, a Will is either typed (and signed before witnesses), or made in holographic fashion, in which it is entirely written in the handwriting of the testator. Here, the Message was sent when the Deceased was too weak to write or speak but could use an iPad with a stylus;
5. Shortly after sending the Message, the Deceased was intubated and became unconscious. She died on May 21, 2023, shortly after sending the Message;
6. Rheanne searched the Deceased’s home and did not discover any other testamentary documents or any previous Last Will and Testament;
7. The Deceased was never married and had no children. She had three siblings: Wayne, Brenda, and Carol Haines, who was the mother of Rheanne and Ryan, and who died on February 10, 2024.

Issue:

The issue was whether the Message should be declared the Deceased’s Last Will and Testament, despite it not being executed in complete compliance with the formal requirements of The Wills Act, 1996.

Ruling:

What is s. 37 of The Wills Act, 1996:

37 is a provision which allows the Court to “cure” a technical issue relating to a testamentary document. The provision reads below:

Substantial compliance

37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, on application is satisfied that the document or writing embodies:

1. the testamentary intentions of a deceased; or
2. the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will.

Prior case law makes clear that 37should be broadly interpreted to enable courts to validate a testamentary document even where there is imperfect compliance with the formal requirements under The Wills Act, 1996.

The test to trigger the operation of s. 37 involved the below two considerations:

1. The first factor is whether the document is testamentary in nature. In other words, does the document disclose the person’s testamentary intention, as to how they wish to dispose of their property upon death;
2. The second factor is whether the document represents a deceased’s final wishes. Put another way, is the document embodying a fixed and final intention, and not a mere draft embodying a temporary or inconclusive expression of their intention.

Ruling in Haines v Kuffner Estate:

The Court noted that there was no opposition to the application before the court. All parties agreed that the Message represented the Deceased’s testamentary intention.

The Court in Haines held that the Message was deemed to be the Last Will and Testament of the deceased, Kim Kuffner, pursuant to s. 37 of The Wills Act, 1996. As a result, the applicant was allowed to apply for letters probate, using the Message as a testamentary document.

The Court found that the Message sent by the Deceased to her siblings was testamentary in nature and represented her deliberate and final intentions regarding the disposition of her estate.

The Court relied on the below grounds:

1. The Message began with “My holographic will;”
2. It named an executor;
3. It named a Pet guardian;
4. It provided specific instructions for the distribution of her assets; and
5. It concluded with the date and her name.

Separately, the Court also noted that there was no dispute that the messages received by Brenda and Wayne, and appended to their affidavits, were sent by the Deceased from the Deceased’s device.

Further, there was no evidence that the Deceased was confused or otherwise suffering from a decline in her cognitive ability at the time she sent the Message to Brenda and Wayne setting out her last wishes. In fact, her messages revealed clarity of thought and an awareness that her death was imminent:

34 There is nothing unclear in the message about Kim’s testamentary intentions. Although she could no longer write, and thus the formal requirements of the Act respecting a holographic will were not met, I conclude that the message is testamentary in nature and that it represents Kim’s deliberate and final intentions as to the disposition of her estate.

The Court recognized that s. 37 should be broadly interpreted to validate a will even without compliance with formal requirements.

The Court also held that the applicant was entitled to solicitor-client costs of the application payable by the estate of the Deceased. It is suggested that such was a proper order, in that any legal fees incurred in this application, would benefit the entire Estate (by obtaining certainty on how to distribute the Estate).

Conclusion:

Haines is a reminder that a Court should generally be focused on substance, over technical form, when it comes to validating a testamentary document.

Here, the Message did not meet the formal or technical requirements of a valid will. However, the Court was satisfied that the Message embodied the testator’s true intentions behind the document, even if the form was faulty.

Haines also recognized that in this day and age, technology is a vital method of communication for many persons. As such, a broad interpretation of s. 37 that recognizes this modern reality, is crucial:

[36]           The broad interpretation of  37of the Actis responsive to the modern reality that for some people, their only means of communication is through electronic devices. Here, it was the only means available to Kim who was near death, too weak to write or speak. In this case, an inflexible interpretation and application of s. 37 would have denied Kim the agency to direct how her estate was to be disposed of.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances. This article is not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

The recent Saskatchewan King’s Bench decision in Hunt v Hunt, 2023 SKKB 190 confronted a rather unique circumstance. The question was whether an executor who has renounced her right to probate an estate, can later rescind that renunciation.

In the situation in Hunt, the Court concluded that such renunciation could be rescinded, as no probate had yet been issued in this Estate.

Factual background:

The factual background was summarized as follows:

1. Gwendolyn Kathleen Hunt (”Gwendolyn”) died on October 12, 2019;
2. In her Last Will and Testament executed on December 29, 2014 (“Will”), Gwendolyn appointed her two children—Rayna Brandy Hunt, and Cory Robin Hunt—as co-executors of her estate;
3. Rayna averred that she did not see a copy of the Will until April 2020, six months following the death of her mother. It was then Rayna allegedly first learned Gwendolyn had appointed her as a co-executor of the Estate. Cory disputed this, and said that he gave Rayna a copy of the Will at the funeral home in October 2019, and Rayna then balked and said Cody would have to handle the Estate;
4. In April 2020, Rayna executed a renunciation, but it was not in the proper form;
5. In January 2021, Rayna executed a renunciation which was, this time, in the proper form under Rule 16-16(2) of The King’s Bench Rules;
6. In April 2021, Rayna later however decided that she did in fact wish to administer the Estate. She came to this conclusion before any grant of probate had issued in this Estate;
7. Rayna said that she came to this new conclusion, as Cory had not been diligent in managing Gwendolyn’s Estate, and Rayna now desires to be actively and fully involved in the Estate’s

Issue:

The issue before the Court was whether Rayna could lawfully rescind her renunciation.

Findings by the Court:

The Court decided that Rayna could in fact rescind her renunciation. In doing so, the Court examined the below issues.

What is the law governing the renunciation of probate:

There are formal requirements which must be complied with for a renunciation to be effective. There are also certain common law principles relevant to when such a renunciation may be rescinded.

Rule 16-16(2) of The King’s Bench Rules deals with renunciation. It states:

16-16…

(2)        If an executor does not apply for a grant, the executor shall renounce in Form 16-16.

Section 12 of The Administration of Estates Act, SS 1998, c A-4.1 sets out the legal consequences flowing from a renunciation of probate. Subsection 12(a) provides the below:

Renouncing probate

12 Where a person who is named as an executor by a will renounces probate of the will:

(a) the person’s rights with respect to the executorship and any trusteeship pursuant to the will cease; and

When can an executor rescind their renunciation?

There are a few Canadian decisions which discuss when an executor can properly rescind a renunciation.

For example, the Court in Hunt cited the Nova Scotia Court of Appeal in Re MacIssac and MacDonald, (1983), 1983 CanLII 2835 (NS CA), 148 DLR (3d) 553 (NS CA), for the proposition that after letters probate are granted, an executor may be permitted to renounce only if it is shown that to do so “was in the best interests of the estate and all those interested therein”.

However, the Court in MacIssac had made clear that there was no outright prohibition on allowing an executor to rescind a renunciation.

Decision of the Court in Hunt:

The Court held that, as no probate had been made, the law was clear that it was permissible for an executor to rescind an earlier renunciation.

The Court held that Rayna could rescind her renunciation:

[35]             Accordingly, I am persuaded that Rayna’s request to rescind her renunciation of probate executed on January 30, 2020, should be granted. I would note as well that allowing Rayna to continue as a co-executor of Gwendolyn’s estate accords with her mother’s wishes as set out in the Will.

…

[39]            Accordingly, for these reasons, I direct that Rayna’s renunciation of probate executed on January 30, 2020 is rescinded. As co-executors, the parties should now move with reasonable dispatch to apply for letters probate respecting Gwendolyn’s estate.

The Court made no order as to costs. The Court found that each party had acted reasonably in placing this uncertain situation to the Court for clarity. The Court held that each party was to bear his or her own costs.

Conclusion:

Situations in which executors renounce are not extremely common. Thus, situations of rescinding a renunciation are even less common. That said, the guidance in Hunt is of interest to estate practitioners. It offers a lesson that if an executor renounces, but later has a change of heart, the executor may well be able to rescind that renunciation if probate has not issued, and there have not been interim developments which make it impractical to now rescind the renunciation.

The situation would be different in another factual scenario. If much time had passed after a renunciation, and another executor had stepped into the role and performed various actions in that office, it would be far less likely that a Court would allow a renunciation to be withdrawn.