No right of appeal exists without leave in an estate dispute: SK Court of Appeal

The Saskatchewan Court of Appeal quashed an estate's appeal regarding the validity of a will, ruling that no right of appeal exists without leave.

Sharon Miller passed away in April 2020, leaving a will executed in November 2017. She was divorced and had three adult sons: Darren, Troy, and Brad. Sharon's will appointed Troy and Brad as executors and divided her property so Darren would receive $120,000 and all her shares in a privately held corporation. At the same time, the residue would be split between Troy and Brad.

After Sharon's death, Troy and Brad renounced their executorship, and Darren applied to be appointed as administrator of the estate. Brad accepted the will's validity, but Troy challenged it, arguing that Sharon lacked testamentary capacity due to a stroke and undue influence. Consequently, a judge from the Court of King’s Bench directed a trial to prove the will in solemn form, focusing on Sharon's testamentary capacity and potential undue influence.

Darren, acting as administrator for the estate, appealed this decision without seeking leave. Troy then applied to quash the appeal, arguing that it was interlocutory and required leave under The Court of Appeal Act, 2000.

The court ruled that appeals are statutory rights, and interlocutory decisions from the Court of King’s Bench require leave to appeal unless they fit specific exceptions outlined in s. 8(2) of The Court of Appeal Act. The decision to order a trial to prove the will was deemed interlocutory, as it did not resolve the central issue of the will's validity but set the stage for further proceedings. As such, the estate needed leave to appeal, which it had not obtained.

The appeal court noted that distinguishing between interlocutory and final decisions depends on whether a decision disposes of the parties' rights on substantive issues in a final and binding manner. Here, the decision was interlocutory because it did not determine the substantive merits of the case.

Darren argued that if the decision was interlocutory, the court should grant leave nunc pro tunc. However, the court considered whether the appeal met the criteria for granting leave, including assessing the appeal's merit and importance.

While the court acknowledged that the estate's appeal was not frivolous and raised arguable points, it concluded that the appeal was not of sufficient importance to warrant leave. The law regarding proving a will in solemn form is well-settled, and the appeal did not raise new or uncertain points of law, nor did it have broader implications beyond the case's specific circumstances.

Additionally, the court noted an unexplained delay of nearly 11 months between filing the notice of appeal and filing the factum and appeal book. This delay and the lack of broader implications weighed against granting leave nunc pro tunc.

Ultimately, the court quashed the appeal, ruling that the estate required leave to appeal the interlocutory decision, which it had not sought.