Date: 27 Apr, 2022| Author: Fred Streiman

Part 1

The Ontario Court of Appeal in Leonard v. Zychowicz, a decision released in March of 2022 outlined the cost and difficulty of successfully attacking a Will.

As an example of the incredible expense and time involved in such an attack, this was an appeal decided two years after the original final order (made after the hearing of an application), which in turn took place approximately nine years after the death of the person making the Will, the “Willmaker”.

The Willmaker had in 2002 named her niece Ms. Leonard as the sole executor and beneficiary. Some five years later she made a new Will removing Ms. Leonard and replacing her with another niece Ms. Zychowicz. The appeal was an uphill battle. The decisions of trial judges are generally given great deference by the appeal court. The trial judge needed to have made a palpable overriding error in the assessment of the evidence, ie she really screwed up on the evidence. This is the test if the decision was based upon a set of facts or a mix set of facts and law. On the other hand where there is an error in principle, such as the trial judge failing to consider all of the parts of the relevant legal test, then the Court of Appeal is entitled to substitute their own decision.

The Court of Appeal held that the application judge made no errors, had correctly assessed the law and the test at hand. Also the evidence fully supported the application judge’s decision.

By way of explanation, an application versus a trial is reflective of the kind of evidence put before the court to make a decision. An application generally but not always lacks hearing live evidence. Evidence before the court is usually submitted only in the form of written affidavits.

The case was also one of dueling experts. Both parties put forward highly regarded geriatric experts who render after-the-fact opinions upon the Willmaker having the appropriate capacity to make a Will. On behalf of the challenging niece, we had Dr. Shulman who has an extremely high-profile in this area. On the opposing side, we had Dr. Pachet on behalf of the Respondent Zychowicz.

Dr. Shulman’s opinion was fatedly flawed as it was based upon a set of facts put before him by Leonard’s lawyer. The position of Zychowicz that the Willmaker certainly knew what she was doing when she made a change to her Will was supported by a great deal of external evidence, including the lawyer who drafted the new Will. It is important to note that this long drawn-out matter involved a cost order that may very well be simply a token. While the cost order was $75,000, this author has no doubt that the costs were far greater. This estate was worth only $500,000 in total. While not a pittance, the legal fees between the two parties had to easily have approached $200,000.

The Court of Appeal as is its habit, granted relatively modest costs. They ordered the loser to pay the winner $15,000, including of disbursements and taxes. Again the true legal fees of both parties had to have been at least $50,000.00.

We will look closer at the law in Part 2 of this Blog.