Can there be unexpected financial consequences of retroactive proof of death?

November 11, 2019 Kira Domratchev Estate Litigation Tags: , 0 Comments

In Threlfall v. Carleton University, the Supreme Court of Canada held that a deceased’s estate must repay pension payments received post-death. Although paying back a windfall seems like a common-sense outcome that would not require the analysis of the highest court in Canada, the 50-page 6/3 split-decision tells us it is not as simple as one would think.

In this case, Mr. George Roseme (“R”), a retired Carleton University professor who was suffering from Alzheimer’s disease, disappeared from his home in Quebec in 2007 after going for a walk. R’s remains were not found until almost six years later. During that passage of time, pension payments he had been receiving from the University at the time of his disappearance continued to be paid. Notably, the University did attempt to cease payments within a year or two after R disappeared, but R’s surviving spouse objected, since under the Quebec Civil Code one is presumed to be alive for seven years unless proof of death is obtained. The University reluctantly continued the payments.

After discovery of R’s death in 2013, and a determination that he died just one day after his disappearance in 2007, the University sought to recover the overpayment from R’s estate and surviving spouse. It was successful throughout. The Supreme Court of Canada decision, although lengthy and multifaceted, seemed to largely turn on the following findings:

  • On the plain language of the pension plan, benefits were to end upon R’s actual death, not the date that it was discovered or officially recognized;
  • The rebuttal of the presumption of life must be assessed retroactively, meaning that payments should only continue during lifetime. Given R’s date of death, this extinguished the entitlement to the pension payments made while R was an absentee. A prospective approach to the rebuttal of the presumption of life would generate a windfall not intended by the absence regime; and
  • The payments were treated, with a retrospective view, as having been made in error, which obliges the recipient to make restitution.

The impact of the decision is weighty, with R’s surviving spouse being required to reimburse the University almost $500,000 in pension payments.

Considering this from the Ontario perspective, I look to the Declarations of Death Act. In this statute, once the seven-year absentee period expires, an application seeking a declaration of death can be brought. I note, though, that the Act contains provisions permitting the court to amend or revoke the order, as well as to make orders regarding the preservation or return of property.  So if you find yourself in the unique circumstance of receiving assets post-absenteeism, perhaps setting them aside would be a good idea, because when things seem too good to be true, they usually are.

Thanks for reading,

Natalia Angelini

P.S. A good summary article can be found here. Our blogs below also touch on some intriguing declaration of death cases:

https://hullandhull.com/2017/10/doppelgangers-declarations-death-act/

https://hullandhull.com/2014/03/premature-declarations-of-death/

https://hullandhull.com/2007/12/interest-not-payable-on-insurance-proceeds-until-declaration-of-death/

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