Examining Litigation in Ontario – Part 2 – Hull on Estate and Succession Planning #207
Listen to: Examining Litigation in Ontario – Part 2
This week on Hull on Estates and Succession Planning, Ian and Suzana focus on Will challenges. More specifically, what a lawsuit or litigation would be like if those involved resided outside of Ontario. Issues examined include when more than one Will is left such as a primary and secondary Wills, what happens when someone gets married, summary judgments and costs.
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Ian M. Hull – Click here for more information on Ian Hull.
Suzana Popovic-Montag – Click here for more information on Suzana Popovic-Montag.
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Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag. The podcast you’re listening to will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.
Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 207 of our podcast.
Ian Hull: Hi Suzana.
Suzana Popovic-Montag: Hi there Ian.
Ian Hull: Okay, well we’ve now gotten over the World Cup effect and we’re deep into the summer. Just came back from the wonderful town of Barrie, Ontario. And again, harking back to my desire to talk about international perspective coming back from Barrie, we weren’t in Toronto. And let’s continue our discussion about what it’s like to be a litigant. I used in the last podcast Germany. Let’s use this time Russia. What’s it like to be a litigant from Russia looking into Ontario and what can you expect? And we talked a little bit about litigation that ensues out of probate tax in our last podcast. So let’s turn now to another kind of core area that we see in Ontario as, you know, giving rise to litigation and giving trouble.
Suzana Popovic-Montag: And I think what you’re referring to is the use of perhaps a Will challenge in a situation where an individual has died here in Ontario, leaves a Will that affects a foreign beneficiary. And so what kind of things do beneficiaries in those circumstances or potential litigants have to think about?
Ian Hull: Absolutely. So you’ve got that great scenario where your aunt who came to Ontario and amassed some wealth and you live in…well, we were using Russia. You can live anywhere in the world. But you live in Russia and you got a gift under her Will. But all of a sudden this Ontario lawyer is telling you you’re not gonna get it for a long time because there’s a Will challenge. And on what basis that has arisen. So that’s the classic scenario and without getting too deep into the Will challenge, it’s litigation that ensues that really the Court is looking to determine whether or not the last Will of the deceased is the last, true, valid Will of the deceased.
Suzana Popovic-Montag: And in terms of just adding a quick layer of complexity that we see more and more these days, many times we’ll find that people are dying with more than one Will. And I say more than one Will in the sense that they’ve got a primary and a secondary Will for instance. Or perhaps a domestic and a foreign Will as well. So just add that into our discussion.
Ian Hull: Well that’s a great point. I mean, we have in Ontario under the Succession Law Reform Act a form for an international Will, which nobody uses.
Suzana Popovic-Montag: That’s right.
Ian Hull: We have primary and secondary Wills which we’ve talked about in the past which helps us avoid our probate tax. And then we have exactly what you’re saying. So if I’m in Russia and I have assets in Ontario and I have assets in Russia, we’ll usually say to our clients do two Wills. But make sure that they deal just with the separate assets and that you don’t revoke the other Will.
Suzana Popovic-Montag: That’s right.
Ian Hull: So if I do one in Russia and I fly over to Ontario to visit and I want to do a Will here, that I don’t go and revoke that Will over there by citing in the opening recital “This Will revokes all other Wills”.
Suzana Popovic-Montag: That’s right. And in these circumstances, we also typically will suggest to clients that they consult domestic counsel so that we make sure we do the best that we can for our clients and their assets here in Ontario and that experts in the foreign jurisdiction will do the same in terms of those assets.
Ian Hull: Absolutely. If you don’t have that special expertise, the local expertise. And we had a case recently where they were Greek assets and my client was in Ontario and we ended up in litigation but the problem was, Greek law and how to deal with it, even once the litigation was done, we had to go over to Greece and retain counsel in Greece, how to administer it, the special circumstances. And we were really relieved because the Greek Will was done properly. And so the transfers occurred in accordance with their law.
Suzana Popovic-Montag: That’s good.
Ian Hull: Another interesting sort of twist in Ontario that we always like to keep in top of mind is what happens when someone gets married with a Will. And tell us about the rule.
Suzana Popovic-Montag: Well the rule is that a Will is revoked by marriage unless, of course, there are other circumstances that will set aside that otherwise presumption basically. And so this, again, also arises in many situations where someone will come from a foreign jurisdiction, they’ll get married, they’ll think that they’ve got their ducks in order and yet upon that marriage, that Will is revoked. Or if they were to re-marry later in life, they think they’ve already had a Will once and that it’s still gonna carry effect to the end of the day, and that’s just not the case.
Ian Hull: Alright. Finally, and I don’t know if we’ll get through this…these are two heavy topics…but one’s that we’re running into a lot more is the perspective in Ontario Courts about summary judgment and about costs. So why don’t we just spend a moment on this. What is summary judgment? And then talk a little bit about the perspective of the Courts.
Suzana Popovic-Montag: So when we’re talking about summary judgment, Ian, what we’re really referring to is the process whereby we can sort of fast forward the litigation and try to get to a resolution from the Court, a determination by the Court, or some kind of resolution in an expedited fashion without going through the traditional full litigation steps.
Ian Hull: So, hence, the summary process of a judgment.
Suzana Popovic-Montag: That’s right.
Ian Hull: Cool. Okay. And so in Ontario we’ve just recently changed our rules so the Court has a different perspective.
Suzana Popovic-Montag: And the truth is that now it’s expected to be much easier to be able to get a summary determination on a Will challenge or in a matter as long as the evidence is, you know, put forward, put forward quickly and that determination can be made based on whatever evidence is available. It’s an excellent mechanism to expedite the process and hopefully save some costs along the way as well.
Ian Hull: Alright. And then finally you say the word “costs”, we can’t help but talk about costs.
Suzana Popovic-Montag: That’s for sure because that’s always top of the mind for every client, whether domestic or foreign.
Ian Hull: And what…sort of in summary form, how are the Courts dealing with costs in Ontario?
Suzana Popovic-Montag: Well all Wills seem to be following the old traditional, you know, costs will follow the determination at the end of the day. And so a successful party will be able to get their costs normally. An unsuccessful party will have to pay the costs of the litigation. Always exceptions because costs are completely discretionary to judges, but with the advent of making summary judgment easier and making the cost determination a little bit more predictable in the sense that we can say to clients a bit more definitively well if you’ve got a really strong case, then chances are you’ll get your costs. But, you know, with the qualification that you just never know for sure.
Ian Hull: Awesome. Alright, well I think we’ve got a little better understanding. If I’m sitting in Istanbul and I have a great aunt who has an asset, a Muskoka cottage, what kind of issues I’m gonna have to look to and can see are going to arise. So we welcome all those from Russia, Istanbul, Spain and all the other countries that I’m not naming to help people get a little bit of a perspective in a summary way, a perspective of what they can expect when they get into litigation in Ontario. So thank you very much, Suzana
Suzana Popovic-Montag: Thank you, Ian. And to all of our listeners, please feel free to send us any questions or any comments you might have in response to our podcast. We’re always looking for some feedback in order to keep them timely and of interest to you. Thank you.
You have been listening to Hull on Estate and Succession Planning by Ian
Hull and Suzana Popovic-Montag. The podcast that you have been listening
to has been provided as an information service. It is a summary of current
issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.
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