Have Second Thoughts Before Accepting A Gift Under A Will

Accepting a gift under a will or assisting in the administration of an estate will likely prevent you from later challenging the validity of that will. Before either accepting the gift or helping the Estate Trustees by cleaning up the deceased's personal effects, you should consider whether you want to, or have any basis to, challenge the validity of the will. Failure to assess and start your challenge early could result in a failed challenge on the grounds that the challenger is estopped by convention.

In Leibel v Leibel, one of the beneficiaries started a challenge to the validity of his mother's will. He claimed that his mother lacked testamentary capacity and had been unduly influenced to make the will. At first blush, his argument had some merit as his mother suffered from brain cancer at the time the will was made. Unfortunately for the beneficiary, his challenge failed because of estoppel by convention.

Estoppel by convention is established when:

(1) The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly).

(2) A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position.

(3) It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.

The beneficiary had taken four separate steps which demonstrated that he believed the challenged will to be valid. He had acted on the terms of the will by selling both a house and a condominium that he was entitled to receive under the will's terms. He had also accepted an art collection and cooperated in the division of the household goods. Each of these actions demonstrated that he shared the Estate Trustee's assumption that the will was valid.

The case illustrates the principle that once you begin to cooperate with the distribution and administration of an estate it is much more difficult to challenge a will's validity. Even the act of cleaning up and distributing the deceased's personal effects can be interpreted by the court as acting on the validity of the will. The time to consider whether you can or should challenge the will's validity is early or you may be estopped from doing so.

Leibel v Leibel, 2014 ONSC 4516 https://www.canlii.org/en/on/onsc/doc/2014/2014onsc4516/2014onsc4516.pdf

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