Motions of Abandoned Applications

A New Direction on Setting Aside Motions of Abandoned Applications – Rule 38.08

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In Eldridge vs. Buchak, a recent case argued by M. Jasmine Sweatman of Sweatman Law, an unprecedented attempt to revive an application deemed abandoned, the court has confirmed its low tolerance for delayed proceedings and the importance of being a competent lawyer.

What Happened?

The applicant brought his Application seeking to contest his grandmother’s will just three days before the two-year limitation period expired. This application was prompted by being given notice of his brother’s settlement of his contested will application.

After numerous adjournments over the course of a year of his application, the applicant’s lawyer failed to appear on a return date, and his application was deemed abandoned pursuant to Rule 38.08 of the Rules of Civil Procedure.

The applicant therefore brought a motion to set aside the “dismissal” of his application, claiming it was administratively dismissed due to inadvertence.


The Decision

On January 31, 2018 the court determined this was in fact a deemed abandonment, not an administrative dismissal and, as endorsed by the Ontario Court of Appeal in Scainin v. Prochniki [], agreed the test to be applied in such cases were the four factors set out in Reid v. Dow Corning Corp. The court examined the application of the Reid test which puts the onus on the applicant to explain the litigation delay, the inadvertence (and if it was inadvertence or a deliberate choice) in missing the deadline, whether the motion was brought promptly, and whether there is prejudice to the defendant.

Discouraging Delay in Judicial Proceedings

In scrutinizing the applicant’s explanation for the delay, the court emphasized the policy reasons to discourage delay and relied on Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd []. The applicant tried to rationalise the delay by his attempts to consolidate both applications, however the court pointed out that he and his counsel should have known they could not be consolidated his brother’s application had already been converted into an action.

The applicant had also failed to satisfy the court that steps were taken to advance the litigation, as multiple adjournments had been given and he and his counsel knew the court date had not been confirmed and the evidence showed that the applicant had made a deliberate choice to not appear and it was not inadvertence.

With regards to the promptness in bringing the motion, the court found the applicant waited almost 12 months to bring the motion and he attempted to defend this factor by stating his articling student had appeared and adjourned the matter sine die. The court found this to be “simply untrue and would appear to have been a deliberate misrepresentation”.


Finally, on the issue of prejudice the court found on the case law that where the limitation period has expired, this gives rise to a presumed prejudice in terms of the decision Habib v. Mucaj []. The court found the applicant’s lawyer failed to rebut the presumption of prejudice although not necessarily that there had been actual prejudice suffered by the respondent as well. The court also concluded that the prejudice could not be compensated for by costs.

The motion was dismissed. On this issue of costs, the court ordered the applicant to pay $20,000 for both the application and motion.

Lessons Learned

All in all, this case now provides direction on how the court will look at “setting aside” motions under Rule 38.08, where to date there is little case law. Although not expected to be a common type of motion, the direction provided by this decision is welcomed.

If you have questions about this decision, contesting a will, or about estate litigation more broadly, contact Sweatman Law. We represent executors and beneficiaries in all types of estate litigation. We will work diligently to protect your interests, thoroughly explain your legal options and provide you with knowledgeable advice. To schedule an appointment with one of our lawyers,  contact Sweatman Law Firm. 

Challenging a Will because of “Undue Influence”

The basic purpose of a Will is to allow individuals to set out their final wishes and instructions as to how their affairs should be handled after they pass away. Therefore, the Court will not set aside a Will lightly.


Often when a Will is challenged “undue influence” is one of the primary grounds. Although it may seem obvious to the Will challenger that the testator was influenced by an ill-intentioned friend or relative, because a Will challenge takes place after the testator has passed away, the testator is unable to say what really happened.


Understandably then, the threshold for establishing a Will was the product of undue influence is high. In Banton v. Banton the Superior Court of Ontario stated it must be “…established on the balance of probabilities that the influence imposed by some other person on the deceased was so great and overpowering that the document reflects the will of the former and not that of the deceased.”


Although the facts of each case are unique, there are certain indicators of undue influence which have been noted in the case law, including:

  • The testator is depending on the beneficiary for emotional and physical needs;
  • The testator is socially isolated;
  • The testator has experienced recent bereavement; and
  • The testator has made a new will not consistent with prior Wills.


Simply showing there was opportunity or motive to unduly influence a testator, however, is not sufficient to prove undue influence.


Considering the high threshold and evidentiary hurdles for challenging a Will, those considering a Will challenge should evaluate their options by consulting with a lawyer experienced in estate litigation.

Over half of Canadians Still Do Not Have a Will

A recent poll by the Angus Reid Institute confirmed half of us Canadians (51%) still do not have a Will, while another 15% have out-of-date Wills.

The poll also probed the reasons so many Canadians are not getting around to having a Will written. 25% said the main reason was they are “too young to worry about it”, while another 23% said it was because “I don’t have any assets to worry about”. Other reasons included “it’s too expensive to get a Will written” (18%), “I don’t want to think about dying” (8%) and “it’s too time consuming to get a Will written” (5%).

Regardless of your age, having a Will is extremely important, and is well worth the time and expense.

A Will is a legally binding document allowing you to decide who will manage your money and property after you pass away (your Estate Trustee), and who will get your money and property.

Generally speaking, there are several benefits to making a Will. Doing so will allow you to:

  • Decide who will handle your estate and distribute your assets
  • Decide who will receive your assets in accordance with your wishes
  • Reduce or defer taxes
  • Avoid disputes and litigation (e.g., by providing directions for special property or items)
  • Create trusts, (e.g. for minor children)
  • Donate to charity upon death

After learning this, the next question people usually ask is “what happens if I die without a will?”

There are rules (set out in the Succession Law Reform Act) for what happens to your property if you die without a Will (known as dying intestate).

These rules are inflexible, and may end up benefiting the wrong people, at the wrong time, and in the wrong way. The rules are:

  • If you have a spouse, but do not have children, your entire estate will be left to your spouse
  • If you have a spouse and one child, your spouse will receive the “preferential share” (the first $200,000). The remainder will be divided between your spouse and child 50/50.
  • If you have a spouse and more than one child, the first $200,000 will go to your spouse. The remainder of the estate will be divided as follows: 1/3 to the spouse, 2/3 to the children, divided equally. If only grandchildren survive, they would share the estate equally (per capita).
  • If you have children, but are not married, all children share the estate equally
  • If you do not have children or a spouse, your entire estate will go to your parents. If both of your parents are deceased, your siblings will share in the estate equally
  • If there is no next of kin, the estate escheats or goes to the Crown (government).

In summary, a Will allows you to plan your estate by choice instead of default. Although you may write a (holograph) Will entirely in your own handwriting and sign it without witnesses, it is preferable to have your Will prepared by an estate planning lawyer who develops an understanding of your needs and drafts according to your objectives.

Now that you understand the importance of having a carefully prepared Will, make sure you are not part of the 51% who have not planned ahead!

We can help.