Green v Ellul

The appeal concerned an application for provision out of the estate of Mary Ellul, deceased, brought by three of her children (the respondents) against the executors of her will (the appellants). The deceased died on 18 September 2016, and probate was granted on 12 January 2017. The respondents, who were each left a cash legacy of $1,000 under the will, issued proceedings pursuant to the relevant Act on 10 July 2017, seeking provision from the estate. These proceedings were served on the appellants' solicitor on 13 July 2017, which was one day outside the six-month limitation period prescribed by section 8(1) of the Act. The initial summons did not expressly seek an extension of time.

The legal issues before the court were whether the summons filed on 10 July 2017 constituted an "application for extension of time" within the meaning of sections 8(4) and 8(5) of the Act, whether a subsequent amended summons filed on 18 September 2017 had the effect of making the initial summons an application for an extension of time, whether the initial summons conveyed to the appellants that an extension of time was being sought, and whether any part of the estate had been distributed before an application for an extension of time was made. The significance of these questions lay in section 8(5) of the Act, which stipulated that distributions made before an application for an extension of time would not be disturbed.

The master reasoned that the Act was remedial legislation and that to interpret the summons as not including an application for an extension of time would render the claim otiose, thereby failing to give the most complete remedy permitted by the Act. The master concluded that the purpose of sections 8(4) and (5) was fulfilled as the executors had notice of the claim. The master also held that, in any event, Supreme Court Rules (SCR) 54 provided retrospective effect to the amended summons filed on 18 September 2017, which expressly sought an extension of time. This amendment was deemed to relate back to the date of service of the first summons, 13 July 2017, meaning the application for an extension of time was effectively made on that date.

The master's decision was that the initial summons, when read beneficially and in conjunction with the supporting affidavits, constituted an application for an extension of time. Furthermore, the subsequent amendment retroactively confirmed this. Consequently, the master found that the application for an extension of time was made before any distribution of the estate, and the appellants' actions, including drawing cheques for legacies and transferring funds to themselves as residuary beneficiaries, were therefore subject to the potential orders of the court.