Toronto Estate Law Blog

525,600 minutes

Hull and Hull LLP — Fri, 17 May 2013 04:44:40 -0500

I recently attended the production of ‘Rent’ at the Lower Ossington Theatre. The musical has been a favourite of mine for years. I know the words to almost all of the songs, albeit if I have to sing them, it is fairly off key. One of the songs in the musical (which gained some popularity at the time the musical was originally on Broadway in 1996) is called Seasons of Love. It contemplates how you measure someone’s life and posits, "is it…

in daylights, in sunsets, in midnights,
in cups of coffee?
In inches, in miles, in laughter, in strife?

In five hundred twenty-five thousand
six hundred minutes
How do you measure
A year in the life?

How about Love?..."

This song has always made me think, and since delving into the world of estate litigation, even more so. As part of our jobs, we routinely focus on specific facts. When was he born? When did he marry? When were his children born? When did he make a Will? How long did he spend in hospital? When did he die? These can all be placed neatly into a chart, that gets turned into a report, that gets turned into an affidavit, that gets turned into a factum, that gets turned into oral argument. All based on pure facts. Yet, I saw this photo yesterday and I was reminded again of the lyrics recited above.

We are so often focused on the tidbits of information that make up a legal argument, that we can forget that the facts are parts of someone’s life. If you knew your life was going to be measured, how would you want that story told? Would it change how you spend the next 525,600 minutes?

Something to think about,

Nadia M. Harasymowycz

Safe Keeping

Hull and Hull LLP — Thu, 16 May 2013 04:00:40 -0500

Have you ever had something that was special, that you wanted to put in a special place to make sure nothing bad happened to it? You find the perfect spot for it and put it away. Only to have to go looking for it days, months or years later and fail to remember where that ‘perfect spot’ was. It seems our legislators have as well, which have resulted in the original provisions that allow for a ‘lost will’ application.

Wills are special documents. Sure, they are usually only a handful of pages, written in legible writing, with a few signatures on the last page. They appear to be just another stapled together package. Yet, they really are special, with a whole bunch of rules as to how to deal with pretty much everything possible means of damage/changes/loss to the document. The special nature of a Will was discussed in a recent decision from British Columbia, Thierman Estate V. Thurman 2013 BCSC 503 .

Upon the death of George Thierman only a copy of his Will was found. The issue was whether or not the Will was intentionally destroyed or whether Mr. Thierman lost it. As party of this issue, there was the possibility of a Wills Variation Act claim, if the Will were determined to be valid. The court reviewed and considered the rebuttable presumption that a will, last in the custody of the testator, is presumed revoked if it is not found at death. Various case law was considered, and many factors were reviewed. Among these factors, the court considered the evidence of the parties which suggested that the Deceased was meticulous and was unlikely to have lost or misplaced his will.

It was found that on a balance of probabilities, the Deceased destroyed his will, with the intention of revoking it. Further, the court made a declaration that the Deceased died intestate, and special costs of the application were to be paid.

As with many matters that revolve around the actions of a Deceased, the Court in this matter was compelled to weigh evidence from several parties and to have that evaluation result in a decision that would have impact on a whole family. The specific details are interesting and ultimately assisted the court, I would direct you to this case in the event that this matter sparks your personal interest. What can be gleaned from this case, is that like each matter that deals with whether an item ever made it to the ‘perfect spot’ for safe keeping and what happened after that, the evidence before the court, and the credibility of that evidence is what the decision will ultimately stand on.

Until Tomorrow,

Nadia M. Harasymowycz

Mental Health Gets a Checkup

Hull and Hull LLP — Wed, 15 May 2013 07:27:38 -0500

The American Psychiatric Association is set to publish the fifth and latest edition of the Diagnostic & Statistical Manual of Mental Disorders, the DSM-5, this month. The DSM-5 will change the way mental disorders are defined and identified by researchers and practitioners in the field.

Since 1952, when the first DSM was published, the manual has been used to promote worldwide consistency in the diagnosis, recognition and treatment of mental health issues. Since its initial publication and with each successive revision, professional and public awareness and understanding about the diversity of mental health issues has grown significantly.

As a lawyer practicing in the field of estates, mental health issues arise frequently in practice. At the core of most will challenges is the mental health of the testator at the time that his or her will was prepared. In the seminal case of Banks v. Goodfellow, Lord Blackburn described the requisite capacity to make a will as follows:

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

This is not strictly a legal test, and is not strictly a medical test. It is a hybrid that requires certain functional abilities from a testator at the time of making a will. The case also recognizes the transience of some forms of incapacity, recognizing that those affected by some conditions may have good days and bad days, or may have impairments that do not inhibit their ability to make a valid will.

It is remarkable that the basic principles have survived nearly a century and a half, in light of the tremendous medical and scientific advancement in the area of mental health. It remains to be seen whether the changes in the DSM-5 will lead to a more nuanced understanding of mental health with respect to testamentary capacity, the capacities to make a power of attorney for property or personal care, respectively, or the other levels of mental capacity recognized at law. It may affect the way Ontario capacity assessors approach their task of gauging how an individual's medical and mental status interfaces with various legal tests, including the one originating in Banks v. Goodfellow.

Another interesting aspect of the DSM-5 that arises in connection with estate law is the change it will make in how grief is perceived. Under previous versions, the definitions of some types of mental disorders, including depression, excluded those suffering from the death of a loved one in the previous 2 months. A Vancouver Sun article reports that this bereavement exclusion will be removed, recognizing that individuals dealing with a loss may sometimes benefit from professional help of a different kind than the type that an estates lawyer can provide.

Thank you for reading.

Suzana Popovic-Montag

Hull on Estates #331 - Passing of Accounts

Hull and Hull LLP — Tue, 14 May 2013 10:39:11 -0500

Listen to: Hull on Estates Episode #331 – Passing of Accounts

Today on Hull on Estates, David Smith and Jonathon Kappy discuss procedural nuances on a passing of accounts application. If you have any questions, please e-mail us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on David Smith.

Click here for more information on Jonathon Kappy.

Nate Dogg - Just One More Fight

Hull and Hull LLP — Tue, 14 May 2013 04:00:40 -0500

No one wants to be embroiled in a family fight. No one wants their parents to disinherit them. No one want to fight with their siblings. Yet, as Estate litigators, we know that even those with the best expectations and planning are not immune to estate litigation. Unfortunately, rapper Nate Dogg’s Estate recently discovered this reality, AGAIN.

Nate Dogg passed away in March 2011. Having died intestate at the age of 41, litigation has surrounded the Estate in California Courts since shortly after his death, including who was going to act as Estate administrator. Although the litigation relating to the administration of the Estate appears to have been resolved, a quick google search of his name will return many hits related to his potentially modest estate being the subject of various claims.

In addition to those claims that were commenced shortly after the rapper’s death, it has been recently reported (as can be found here) that a woman has made a claim against his Estate for unpaid child support in the amount of just under $340,000. The allegations are that Nathaniel Dwayne Hale (aka Nate Dogg) was supposed to pay Ms. Shereda Williams child support in the amount of $4,358 per month for a child reported to have been born in 2006. It is alleged that the Estate owes Ms. Williams the balance of unpaid child support obligations as well as any payments which would have accumulated since Nate Dogg’s death.

Many details of Ms. Williams’ particular claim remain unclear. Yet, there appear to be several very easy lessons to learn from Nate Dogg’s untimely death, notably, engage in some estate planning and be aware of your financial obligations before and after death. Wherever situate your Estate, I think these two principles are universally applicable as good practice.

Thanks for reading,

Nadia M. Harasymowycz

Arbitrator Judy

Hull and Hull LLP — Mon, 13 May 2013 08:07:11 -0500

I recently came across an article in the American Bar Association’s ABA Journal that contains some surprising results from a Reader’s Digest poll. The magazine polled over a thousand Americans to determine the top one hundred most trusted people in the United States. As a lawyer, the most startling results for me were those for judges. According to the poll, the most trusted judge in America is Judith Sheindlin, the eponymous host of television’s Judge Judy. Several places below her on the list was Justice Ruth Bader Ginsburg, followed by Chief Justice John G. Roberts and Justice Anthony M. Kennedy.

After reading this, I decided to do a little more research (on Wikipedia) on television’s most recognizable judge. Before being on TV, Judge Judy worked as a lawyer in the New York family courts before being appointed to the bench. After being featured on an episode of 60 Minutes, she was contacted about starring in her own reality courtroom series. The show, which began in 1996, has been an incredible success and has made Sheindlin an extremely wealthy woman. It has been reported that she is the highest paid personality on television, making approximately $45 million annually for 52 days of taping per year.

As I suspected, in her televised role, Judge Judy is not really a judge at all – she is actually acting as a private arbitrator, adjudicating small-claims disputes within a simulated courtroom setting. All parties appearing on the show sign contracts agreeing to have their matter arbitrated by Sheindlin. Although not done on a courtroom set, I occasionally arbitrate estate and trust disputes as part of our Hull Estate Mediation practice.

Anyone who knows me in a professional capacity knows that I am a big proponent of alternative dispute resolution mechanisms such as mediation, arbitration and the emerging practice of “med-arb” whereby an unsuccessful mediation automatically transitions into arbitration. Alternative dispute resolution can allow for settlements to be reached more expediently, more efficiently and more privately than through the traditional court process. When faced with the reality of litigation, methods of alternative dispute resolution can serve to ease the pain of what can be an extremely expensive and emotional process for clients.

While I do appear in a “television” series, it is unfortunately nothing like Judge Judy. Despite this, I am happy to now know that Sheindlin and I both promote alternative dispute resolution in our own very different ways.

Thanks for reading and have a good week.

Ian M. Hull

$10 million cost award for "outrageous" conduct during litigation

Hull and Hull LLP — Fri, 10 May 2013 04:00:00 -0500

I attended a seminar about e-discovery last month where we discussed the importance of disclosing all documents that are relevant to the issues pled in litigation. The failure to disclose relevant documents can lead to devastating cost consequences.

The Ontario Superior Court recently awarded $10 million against the Government of Canada for its “outrageous,” “reprehensible,” and “shocking” misconduct for rigging a procurement contract and then trying to deceive the court.

Full indemnity costs are awarded only in extraordinary circumstances. The Supreme Court has described the circumstances when elevated costs are warranted as “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.”

The defendants’ concealment of relevant documents and resistance to allow the documents to be entered into evidence warranted the chastisement of the court, according to Justice Annis. By marking the documents as “not relevant,” the defendants mislead the court which constituted “grave misconduct.” The court would have ordered punitive damages as well, but for its finding that an award would not have served the purpose of denunciation and deterrence.

Holly LeValliant

Hull on Estates #331 - Issues Involving Minors and Incapables

Hull and Hull LLP — Thu, 09 May 2013 10:35:36 -0500

Listen to: Hull on Estates Episode #331 – Issues Involving Minors and Incapables

This week on Hull on Estates, Natalia Angelini and Jonathon Kappy discuss issues involving minors and incapables. Specifically, they discuss accepting payment into court for the benefit of individuals under the age of majority as well as various statutes dealing with accepting payment into court.

Please leave a comment or send us an email at hull.lawyers@gmail.com if you have any questions.

Click here for more information on Natalia Angelini.

Click here for more information on Jonathon Kappy.

Lean on Me

Hull and Hull LLP — Thu, 09 May 2013 04:00:00 -0500

A new survey finds that 19% of the people polled would risk their own financial security to support their adult children, according to a recent article in the Toronto Star.

The rising cost of post-secondary college is one of the factors causing adult children to be increasingly reliant on their parents for financial assistance. According to the Government of Canada, a student attending CEGEP, trade school, college or university full-time today can expect to pay between $2,500 and $8,000 per year or more in tuition alone—not including books, supplies, student fees, transportation, housing and other expenses. In fact, full-time students in Canada paid $14,500 on average to cover a year of post-secondary expenses in 2003-2004. That's roughly $58,000 for a four-year program.

John Tracy, a senior vice president at TD Canada Trust cautioned in a release, “As a parent, it’s natural to want to help when children struggle with finances, but it’s important this support does not compromise your own financial stability and retirement savings goals.”

Financial dependence can also compromise your estate planning goals. The financial dependence of an adult child on your financial support can lead to potential litigation through a dependant’s support claim after your death. For more information about recent case law in a dependant’s support claim, check out Paul Trudelle and Noah Weisberg’s podcast here.

Holly LeValliant

The Little Things that Count

Hull and Hull LLP — Wed, 08 May 2013 07:46:14 -0500

Estate disputes can be as emotionally charged as litigation gets. Often, there are homes, bank accounts and other valuable assets at stake. In many circumstances, the things that trigger the fighting are not the assets themselves. There are sibling rivalries, parent-child animosity, and first and second family tensions present which play themselves out through protracted litigation about RRSPs or a life interest in a condominium.

In many cases, it is the smallest assets of the estate that cause the most resentment amongst the parties - a cherished tea set, or an heirloom wedding ring. Disputes over the personal effects of the deceased can get very ugly, and can spiral out of control into a full-blown battle.

Personal effects are difficult to deal with by way of will. There can be many small items that can be difficult to identify in words. The items change over time as new pieces of jewellery are purchased and old furniture is given away. Some people choose to keep an updated list with their wills. This list is usually considered to be merely an expression of a wish, rather than a binding testamentary disposition. Such a list may, under the right circumstances, be incorporated by reference into the will. However, in order for this to apply, it must be in existence already at the time of execution.

Because of the animosity these issues can cause, a number of creative ways of resolving the personal effects problem have arisen.

It may be advisable to discuss these issues with the would-be beneficiaries. Sort out the personal effects while everyone is alive, in the room, and on good terms. If there are no surprises, there is less likely to be a dispute.

I recently heard of someone who prepared a "Book of Things". This Book took the form of a scrapbook containing pictures of the personal items that the author cared about, a description of what the items were and why they were important to her, and an explanation of who she wished to leave them to and why.

Some estates have been resolve through the use of a lottery, or other chance-based mechanisms. Others still rely on drawing lots and taking turns, often flipping the turn order between choices, so that no party unduly benefits by going first.

Silent auctions can be employed effectively to divide personal effects. In some estates, the beneficiaries are given fake money, which they can use to "buy" items at prices set by mutual agreement or by the estate trustees.

Whatever mechanism is employed, careful thought should be given to dividing personal effects during estate planning. Not only can it streamline the process and ensure that the beneficiaries are given what they want, but it can prevent disagreements which can explode into litigation and lifelong resentment within a family.

Thanks for reading!

Suzana Popovic-Montag

Power of Attorney - Be Careful Who you Appoint

Hull and Hull LLP — Tue, 07 May 2013 04:00:00 -0500

Justice J. Wilson’s decision in Ferraton v. Shular is a cautionary tale about how important it is to choose someone trustworthy to be your Attorney for Property.

In 2006, Gary Shular inherited his mother’s property. Mr. Shular had a history of mental illness and depression. After two years, the property had been neglected. Mr. Shular’s friend, Ms. Ferraton, offered to fix up the property and sell it. In exchange, she wanted 50% of the selling price. The parties signed a contract to those terms.

After investing a mere $2,115 in the property, Ms. Ferraton listed the property for sale as Mr. Shular’s Attorney for Property. After deductions, Mr. Shular received $140,000 from the sale. Mr. Shular refused to pay Ms. Ferraton half of the proceeds, being $70,000. Instead, he repaid her the investment of $2,115 in the repairs, and gave her an additional $20,000 for her assistance.

Ms. Ferraton sued Mr. Shular for an additional $32,000.

Mr. Shular’s history of mental illness and depression was central to Justice J. Wilson’s finding that Ms. Ferraton took advantage of Mr. Shular:

“Ms. Ferraton was well aware of Mr. Shular’s emotional frailties and history, and took advantage of his passivity and listless attitude towards the property during a period of deep depression. What appears to have begun as an act of friendship, matured into a plan to profit from the situation and to take advantage of Mr. Shular’s emotional state and apathy.”

Justice Wilson found that the contract was unconscionable, and was therefore unenforceable.

Holly LeValliant

You Don't Have to Die to be Declared Dead

Hull and Hull LLP — Mon, 06 May 2013 08:04:16 -0500

The sensational story of Brenda Heist has been getting a substantial amount of news coverage recently. According to reports, the woman and mother had been missing for 11 years and was presumed dead. That is until she turned herself into police on April 26^th. It has been reported that she told police that after dropping her son and daughter off at school, she made the impulsive decision in 2002 to join a group of homeless hitchhikers heading for Florida. Heist and her husband were going through an amicable divorce but she was very upset at being denied housing support. When crying over this unfortunate turn of events in a park, she was approached by the hitchhikers and decided to join. After a substantial investigation, Heist’s husband went to court and had her declared dead in order to properly administer her estate.

In Ontario, in order to have someone declared legally dead in absentia, an “interested person” may make an application to the Court pursuant to the Declarations of Death Act (the “Act”). An “interested person” is defined in the act as “any person who is or would be affected by an order declaring that an individual is dead.” The Act goes on to list specific “interested persons” who may qualify. These include spouses, next of kin, attorneys for personal care and property, executors and estate trustees.

Pursuant to the Act, The Court may make an order declaring that an individual has died if the Court is satisfied that the person has disappeared in “circumstances of peril” or has been absent for at least seven years. In order to obtain a declaration of death, the “interested person” must show the following:

a) he or she has not heard of or from the person since their disappearance in circumstances of peril or within the 7-year period;

b) to his or her knowledge, after making reasonable inquiries, no other person has heard from the individual;

c) there is no reason to believe that the person is alive; and

d) there is sufficient evidence to find that the person is dead.

As you can see, obtaining a declaration of death may be difficult depending on the circumstances. It can, however, become necessary in order to have a missing person’s estate properly administered for the benefit of those left behind.

Thanks for reading and have a good week.

Ian M. Hull

The Family That's Buried Together, Stays Together

Hull and Hull LLP — Fri, 03 May 2013 06:25:09 -0500

The standing joke about cemeteries is that they are so popular, people are dying to get in. Apparently, some people have to go to greater lengths than others, as was recently demonstrated in the peculiar case of Smith v. Cataraqui Cemetery Company, 2013 ONSC 2468 (CanLII).

While estate practitioners sometimes have to wrestle with the fact that clients can be loath to make plans about their ultimate demise, this case dealt with two people who had exceptional interest and foresight in this respect (albeit, with perhaps some oversight in their estate planning). In 1869 (that is correct, not a typo), brothers Joseph and Darius Smith purchased burial lots in a cemetery near Kingston, Ontario for the then princely sum of $100.00. The plots permitted for the burial of up to 64 people. In return for payment of the said funds, the two brothers were presented with a Deed to the lots (the “Smith Family Lots”).

It should be noted that, in general, when a person wishes his or her remains to be buried/interred at a cemetery, they purchase not the land on which they wish to be interred, but rather the rights to be interred in a specified lot or plot of land (i.e. the interment rights).

The Deed to the Smith Family Lots confirms the brothers’ purchase of interment rights in respect of certain plots, and states (emphasis added):

to have and to hold the above granted Premises to the said Darius Smith and Joseph Smith and their Heirs and Assigns forever subject, however, to limitations and conditions with the privileges specified in the rules of the said cemetery…that they are actually and lawfully seized of the Land hereby granted

In the case, the Court was called on to answer what was meant by the word “Heirs” in this deed, and to consider the application of the relatively new Funeral, Burial and Cremation Services Act, 2002, SO 2002 C.33 (enacted July 1, 2012) to this matter.

The applicants in the case were three direct descendants of the two progenitorial Smiths. They sought permission to ultimately be interred in the Smith Family Lots (where their parents and other Smiths had previously been interred). The operator of the cemetery refused, stating that the original Smiths remained as the registered interment right holders of the Smith Family Lots and that the cemetery was never notified of the transfer of their interment rights. The cemetery required written documentation to prove the applicants’ standing as heirs-at-law and/or to prove a transfer of interment rights to the applicants.

The cemetery argued that it was merely enforcing the position given to it by the Registrar of Cemeteries of the Province of Ontario pursuant to the Funeral, Burial & Cremation Services Act. The Registrar’s position was that the various lineal heirs of original Smiths must prove which of them is the interment right holder(s). In the absence of such proof, the Registrar argued that theAct required that the matter must be determined by a Court after all potential heirs have been given notice of the Court proceeding.

The fact that the cemetery had allowed four generations of Smiths to be buried, without previously raising such issues or requiring such proof, did not sway either the cemetery or the Registrar. They remained adamant that no one would be put in ground on their watch. So, off to court the applicants went.

Thankfully, reason prevailed. The Court held that the position taken by the Registrar and the cemetery was, frankly, “ridiculous” (a technical term, as used by one commentator), and declared that the three Smiths in question could be buried at the Smith Family Lots (although presumably not until they died!). The Court, without difficulty, found that the applicants were the lineal descendants of original Smiths and, therefore, qualified as “heirs” under the terms of the Deed. Specifically, the Court held that "heirs" was to be interpreted broadly, such that it would include lineal descendants or family members of lineal descendant of either brother.

Applying the law of estoppel to the case, the Court found that the cemetery’s silence over the years and the acts accompanying the interment of 33 Smiths in the Smith Family Lots since 1869 without formal proof that they were interment right holders, prevented the cemetery from now insisting the applicants prove they are the interment right holder of the said lots. The cemetery was, therefore, estopped from changing its practice midstream.

Considering the application of the Funeral, Burial & Cremation Services Act to the matter (which provides that only interment right holders or those legally assigned interment rights can be interred in disputed plots), the Court held that the Act did not retroactively apply to the Deed to the extent that it would remove substantive rights granted to the “heirs” of the original Smiths by the Deed.

A point worth considering for estate planners is that there was no evidence that the original Smiths transferred their interment rights while they were alive or devised their rights in their Wills. The cemetery argued that interment rights, if not specifically transferred by the original Smiths during their lifetime, would have been transferred upon their death pursuant to the residue clause of their respective Wills (if no specific provision was otherwise made) or, in the absence of a Will, by way of the laws that relate to intestate estates. This led, in part, to an argument by the cemetery that perhaps the only heirs entitled to be buried were the immediate descendants of the original Smiths. However, the Court made short work of this in observing, somewhat slyly, that it is unlikely that the original Smiths would have expected there to be 64 candidates for the spots from their immediate descendants and more likely intended future generations of Smiths to be buried in the Smith Family Lots.

Also worth noting is that the Court ruled that it was not necessary to serve/notify all possible descendants of the original Smiths (potentially one thousand to two thousand individuals) in order to assign the remaining 31 plots based on their respective priority (perhaps imagining what would happen if a public quest was put on to find anyone named “Smith” who might have a claim!). Rather, the Court decided that the right to the plots will be assigned on a “ first-come first-serve basis,” for those who can prove their patrimony to the original Smiths.

Thanks for reading. Enjoy the weekend!
Saman Jaffery

Form of Order in Applications to Prove a Lost Will

Hull and Hull LLP — Thu, 02 May 2013 07:12:53 -0500

In a recent blog, Suzana Popovic-Montag discussed the Court process to be followed when proving a lost or destroyed will in Ontario - both in situations where all those with a financial interest in the estate consent to the will being proven and in situations where those with a financial interest do not unanimously agree to the will being proven.

Where all persons with a financial interest in the estate consent to the will being proven, Rule 75.02 of the Rules of Civil Procedure sets out the process. In these circumstances, affidavit(s) are filed along with the consents and other application materials, and generally no court appearance is necessary. The Honourable Mr. Justice D. M. Brown’s brief decision in Re O’Reilly provides useful and specific direction regarding the form and content of an order that should be included with such a consent application. Mr. Justice Brown’s decision provides, as follows:

[2] My only purpose in writing this brief endorsement is to deal with the form of the order. Since the Rules of Civil Procedure do not prescribe the form for an order made under Rule 75.02, judges see a wide range of language submitted for proposed orders proving lost wills. In order to bring some uniformity to this type of application, I would ask applicants to submit draft orders using the language recommended several years ago by (now retired) Justice Haley. The draft order should read:

I declare that the Will of [insert name of deceased] dated [insert date of will] has been proved and that the copy of the Will adduced in evidence shall be admitted to probate as the last Will of [insert name of deceased] deceased, until such time as the original may be found.

I direct that, subject to the filing of the appropriate documents with the Court, a Certificate of Appointment of Estate Trustee with a Will for the Will of [insert name of deceased] dated [insert date of will] be issued to the applicant(s).

To this language should be added any other orders sought by the applicant, such as dispensing with service of the application, etc.

[3] Judges considering these applications are provided with a template endorsement using this language. Therefore, in order for an applicant to avoid the delays associated with submitting a draft with different language and then having to submit a revised order that tracks the language of the endorsement signed by the judge, the language I have set out above should be used in the draft order submitted with the application record.

The direction provided by Mr. Justice Brown in Re O’Reilly continues to govern practice in this area. Lawyers acting in applications to prove a lost will under Rule 75.02 are well advised to use the wording prescribed by Mr. Justice Brown in their draft orders, or face delays that may result from submitting a draft order with different language.

Thanks for reading,
Saman Jaffery

Hull on Estates #330 - Dependant Support Claims

Hull and Hull LLP — Wed, 01 May 2013 13:19:15 -0500

Listen to: Hull on Estates #330 – Dependant Support Claims

Today on Hull on Estates, Paul Trudelle and Noah Weisberg discuss dependant support claims with respect to a recent decision by the Ontario Superior Court of Justice.

A link to the case can be found here. If you have any questions, please email us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on Paul Trudelle.

Click here for more information on Noah Weisberg.

A Vial Dispute

Hull and Hull LLP — Wed, 01 May 2013 07:58:05 -0500

When a person dies, those left behind are tasked with the challenge of dividing and distributing his or her property. Disputes often erupt about how to split this property, and the answers usually lie in a will or statute setting out to whom the property is to go. It is only in very rare circumstances that the discussion turns to whether certain items count as property. The issue becomes particularly complicated when the putative property consists of human reproductive materials.

In J.C.M. v. A.N.A., the Supreme Court of British Columbia recently dealt with such an issue in the context of a separation agreement. The couple, both women, had obtained sperm from an anonymous donor through an American company. Each spouse had given birth to one of their two children using the donated gametes, so that their children were biologically related to each other. Several years later, the couple separated. The separation agreement divided all joint property of the relationship. At the time of separation, they did not turn their minds to the remaining samples of sperm then stored at a facility in Vancouver. Several years later, J.C.M. entered a new relationship and wished to use the remaining samples to conceive so that their child would be biologically related to the two children from her prior relationship. A.N.A. wanted the vials destroyed and refused to consent to their release.

Faced with the difficult decision, the court had to consider whether the vials were "property", such that they fell under the terms of the separation agreement. There is a longstanding common law rule that parts of the human body are not property. The court looked closely at an American case, Hecht, which dealt with whether or not a deceased testator could bequeath gametes to his girlfriend by way of his will. The American courts declined to decide whether human gametes were property generally, deciding only that they were property for the limited purpose of the applicable legislative provisions. At one stage, it was decided that 20% of the sperm vials belonged to Ms. Hecht based on a settlement agreement pertaining to the testator's will between herself and his existing children. This was overturned on appeal, wherein the court found that, although the vials were the testator's property for the purpose of wills legislation and available for Ms. Hecht's use, they were not subject to division through an agreement.

Weighing Hecht and several other American and Canadian cases, the B.C. court held that, in this context, the vials were property and therefore were to be divided as such pursuant to the terms of the separation agreement. Important to the court's reasoning was that A.N.A. would not have a parental relationship to any children that might be born to J.C.M.

While some other jurisdictions have taken legislative steps to address this question, the issue of whether or not gametes can be dealt with by way of will in Ontario is still evolving. As reproductive technology continues to advance, new questions will inevitably arise.

Thanks for reading.

Suzana Popovic-Montag

Section 72 of SLRA: Expanded Definition of "Estate" in a Dependant's Relief Application

Hull and Hull LLP — Tue, 30 Apr 2013 07:00:05 -0500

In Stevens v. Fisher, 2013 ONSC 2282 (CanLII), the Ontario Superior Court of Justice recently considered the expanded definition of “estate” against which a dependant can make a claim in a dependent’s relief application, by virtue of section 72 of the Succession Law Reform Act R.S.O. 1990, c.S.26 (“SLRA”).

Section 72 of the SLRA allows a claim for support to be satisfied by certain assets which would otherwise not form part of the estate. Section 72(1) of the SLRA allows a Court to consider and utilize the value of the following “non-estate” assets, among others, in deciding adequacy of support: amounts payable under a beneficiary designation under an insurance policy, a RRSP/RRIF, investment fund or benefit plan; gifts made by the deceased in contemplation of death; accounts held in trust by the deceased for another; accounts of the deceased held jointly with another or property held jointly with another prior to death; and trust dispositions if the deceased had a right to revoke the disposition. Section 72 has the effect of “clawing back” these assets, such that they are deemed to be part of the estate for the purpose of considering the application for support.

In Stevens v. Fisher, the Applicant was the common-law spouse of the Deceased. The Deceased left a Will, which did not provide for the Applicant. In any event, the value of the Deceased’s estate assets was nominal, and the debts of the estate exceeded the value of the assets. The only significant assets left by the Deceased were three life insurance policies, which did not form part of his estate, as follows:

a Sun Life Assurance Company of Canada Group Life Insurance of approximately $84,000, where the Respondent, the former common-law spouse, was named as the beneficiary (the “Group Life Insurance Policy”);
a Manulife Policy with a benefit of $50,000, where the Deceased’s adult daughter was the named beneficiary; and
a Transamerica Life Policy in the amount of $250,000, where another former spouse of the Deceased was named as beneficiary in trust for the Deceased’s other two adult children.

On the basis that adequate provision for her support had not been made been made, the Applicant commenced an application for dependant’s support. As part of her application, she sought a declaration pursuant to s.72(1)(f.1) of the SLRA that the Group Life Insurance Policy was an asset of the estate, available to satisfy her dependant’s relief claim. She sought an order for support from the estate in an amount equal to the proceeds of the Group Life Insurance Policy by way of lump sum and accrued interest. The Applicant did not seek to “claw-back” the other two policies payable upon the Deceased’s death to his children, and only sought to “claw-back” the Group Life Insurance Policy.

The Respondent argued the Group Life Insurance Policy should not be deemed part of the “estate” available to satisfy the Applicant’s dependant’s relief claim. This argument was quickly rejected by the Court, which held that the Group Life Insurance Policy was part of the clearly identified category of property which can be included and deemed to form part of the Estate pursuant to s. 72 of the SLRA.

The Respondent further argued that the Applicant should look to the other two policies to satisfy her claim, before looking to the Group Life Insurance Policy. This argument was also rejected by the Court, which held that there was no provision in the SLRA that required the Applicant to look at other assets to satisfy her dependant’s relief claim in priority to the Group Life Insurance Policy.

This case provides a useful reminder of the expanded definition of an “estate” that a dependant may claim against in a dependant’s relief application. Virtually any asset over which the deceased could exercise control prior to death may be vulnerable to attack in a dependant’s support application. Further, an argument that a particular asset should rank in priority to another to satisfy an order made for dependant’s support may be unsuccessful.

Stevens v. Fisher also sends “a good, solid message” to estate planners to consider legal or moral obligations owing to dependants in all aspects of estate planning, including in the preparation of testamentary documents and in making appropriate beneficiary designations.

Thanks for reading,
Saman Jaffery

Getting "Escheated" out of an Inheritance

Hull and Hull LLP — Mon, 29 Apr 2013 08:10:34 -0500

A recent New York Times article tells the story of Roman Blum, a holocaust survivor who died last year at the age of 97. Mr. Blum left behind an estate with an approximate value of $40 million. The problem is, however, that Mr. Blum apparently died without ever having made a will and he apparently has no living relatives who would be entitled to benefit from his estate. The public administrator in charge of Mr. Blum’s estate is using some of the money to hire a genealogist to search for any heirs that may still be alive. If that search proves fruitless, Mr. Blum’s substantial estate will pass to the state of New York.

In Ontario, what happens to an estate when there is no will (legally known as “intestate succession”) is governed by Part II of the Succession Law Reform Act (the “Act”). The Act dictates as follows:

If there is spouse and no children the spouse takes all.
If there is a spouse and children, the spouse gets the first $200,000.00.
If there is one child, the residue goes to the spouse and the child equally.
If there is more than one child, the spouse gets one-third of the residue and the children share the other two-thirds equally.
If there is no spouse, the estate goes to the children equally.
If there are no children, the estate goes to the deceased’s parents equally.
If there are no parents, the estate goes to the deceased’s siblings; if a sibling pre-deceased, that sibling’s share goes to the deceased sibling’s children.
If there are no siblings, the estate goes to the nephews and nieces.
If there are no nephews and nieces it goes to the next of kin of equal degree of “consanguinity”. The Act states that the next of kin shall be ascertained by “counting upward from the deceased to the nearest common ancestor and then downward to the relative, and the kindred of the half-blood shall inherit equally with those of the whole-blood in the same degree.”
If there is no next of kin, the estate "escheats" to the Crown.

As you can see, it would be an extremely rare scenario for an Ontario estate to pass, or “escheat”, to the Crown. Property that does end up being passed to the Crown is then governed by the Escheats Act.

Mr. Blum likely left behind people or charities that he cared about and wished to benefit. Without a will, however, these wishes will never be known or carried out. Also, depending on the results of the genealogical search, a distant relative who was possibly never known to Mr. Blum may end up receiving his estate. This story is a sad reminder of the importance of making a will (even if you don’t have $40 million).

Thanks for reading.

Ian M. Hull

The Right-to-Die Debate Revisited

Hull and Hull LLP — Fri, 26 Apr 2013 09:49:30 -0500

A recent article in the Globe and Mail takes another look at the right-to-die debate after the death of social activist Ruth Goodman, who passed away February 2, 2013, by her own hand.

Ms. Goodman left a note that reads:

“People are allowed to choose the right time to terminate their animals’ lives and to be with them and provide assistance and comfort, right to the end. Surely, the least we can do is allow people the same right to choose how and when to end their lives..”

At 91, she was suffering from a number of complications due to Crohn’s disease and a series of strokes. By the end she could barely walk or read and complained of being in pain throughout her body. Ms. Goodman advocated for a change in the law so that everyone will be able to make the choice of when and how to die.

Ms. Goodman’s goal may be pushed forward next week. The federal government is challenging last year’s ruling by the B.C. Supreme Court that the law prohibiting assisted suicide, in specific and circumscribed conditions, is unconstitutional. The government says that legalizing doctor-assisted suicide would demean the value of life and could result in vulnerable people taking drastic steps in a moment of weakness.

The B.C. case was launched by Gloria Taylor, an ALS patient who won an exemption from the law. Ms. Taylor died earlier this month, without assisted suicide.

The debate is likely to end up in the Supreme Court of Canada, which last reviewed the country’s assisted-suicide laws in 1993 in the case involving Sue Rodriguez.

Thanks for reading,

Moira Visoiu

Invasive Procedures

Hull and Hull LLP — Thu, 25 Apr 2013 06:00:00 -0500

About 90,000 people die in Ontario every year. Of those, about 16,000 are reported to the Coroner’s Office (or roughly 17%). According to the Office of the Chief Coroner Report for 2009-2011, in 2010, there were 16,415 coroner’s investigations.

Many people do not want to be autopsied – whether it is because of religious beliefs or other personal wishes. However, in Ontario the range of cases which are supposed to be reported to the Coroner are quite broad.

Under the s. 10 of the Coroner’s Act, anyone who is aware that person died of the following causes is required to report that death to the Coroner’s Office:

(i) violence,

(ii) misadventure,

(iii) negligence,

(iv) misconduct, or

(v) malpractice;

(b) by unfair means;

(c) during pregnancy or following pregnancy in circumstances that might reasonably be attributable thereto;

(d) suddenly and unexpectedly;

(e) from disease or sickness for which he or she was not treated by a legally qualified medical practitioner;

(f) from any cause other than disease; or

(g) under such circumstances as may require investigation.

In addition, there are a number of other situations where autopsies are actually prescribed by legislation – including when a woman dies as a result of pregnancy or childbirth, when a person dies while in custody, if a person dies in hospital and a medical mistake is suspected, or when an employee dies on the job as a result of a workplace accident.

Once a death is reported, the coroner will then decide, usually by phone, whether to attend at the scene in order to look at the body and determine if an autopsy should be performed.

The Ontario Coroner’s Code of Ethics does provide that consideration should be given to the beliefs or religious views of the deceased, but ultimately it is always up to the Coroner to make the call:

Coroners in the exercise of their duties, shall respect the beliefs and/or religious views of the deceased, and where an investigation is for reason only that the deceased person has not had medical attendance prior to the hour of death, shall recognize that the exercise of this free choice is not in itself reason for further investigation or autopsy, unless there is evidence of other conditions stipulated in section 10 of the Coroners Act, 1990.

In California, the State of California Government Code Section 27491.43 goes further and provides that unless foul-play or a contagious disease are suspected as the cause of death, if a person has prepared a “certificate of religious beliefs” stating that they oppose autopsies – which must be signed by the Deceased and witnessed by two people – the Coroner shall not perform the autopsy.

In Ontario it is always a matter of balancing the public interest with the private wishes of the individual. Like California, in cases where foul-play or a contagious disease is suspected, it would be very unlikely that an autopsy could be avoided.

For those who have an objection to being autopsied, the best advice is to make your wishes known to your next-of-kin. You might also consider preparing a document similar to the Certificate of Religious Beliefs, stating that you object to being autopsied. While there is no guarantee that it will be effective in preventing an autopsy, it may influence the Coroner in their exercise of discretion.

Thanks for Reading!

Moira Visoiu