Author: Charlotte McGee
There is no shortage of complications, stress and potential expense that can occur when a will cannot be located following a party’s death. This is particularly true in Ontario, where the law provides for a presumption of revocation with respect to lost wills: namely, a will will be presumed to be revoked by destruction when the original will cannot be located after the death of the deceased.
Pursuant to Rule 75.02 of the Rules of Civil Procedure, the validity and contents of a will that has been lost or destroyed must be proved by way of an Application before the Court. As the Ontario Court of Appeal held in Sorkos v Cowderoy,  O.J. No. 3652, a party who seeks to prove a lost will bears the onus to prove due execution of the will; provide particulars tracing possession of the will to the date of the testator’s death; provide proof of the contents of the will; and rebut the presumption that the will was destroyed by the testator with the intention to revoke it.
As we have blogged on previously, will registries are a mechanism which may help parties avoid a missing will debacle altogether. One such registry is the new Canada Will Registry, launched this past May 2019 by NoticeConnect. While NoticeConnect has previously specialized in assisting estate practitioners and trustees to advertise for creditors, and to publish notices looking for missing wills, their blog advises that the development of the Canada Will Registry will aim to provide a comprehensive, Canada-wide system for finding wills.
According to the NoticeConnect website, the Canada Will Registry will enable lawyers and firms to upload the basic information about wills they are storing, and to organize, transfer and receive related digital records. Once the Canada Will Registry amasses 100,000 wills, the program will enable the ability for will searches to be submitted.
When someone is searching for a will, NoticeConnect will publish a Knowledge of a Will notice and its system will compare and cross-reference the search terms against the system’s registered wills. If the terms match with a registered will, the registry will notify the registering firm or company, and provide them with the searcher’s contact information. The platform is used by lawyers, trustees, banks, and government.
It will be interesting to see how technology will continue to develop and assist the legal community, and how effective the advancement of will registries will be in combating the challenges of lost or missing wills.
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In my previous blog on the benefits of estate planning for millennials, I canvassed some of the ways in which today’s young adult generation differs from the young adults of generations past. One such difference is the increased prevalence of common law relationships in today’s millennial cohort. In a wide-ranging public opinion poll conducted in 2018 by the Angus Reid Institute, 53% of Canadian adults expressed feeling that marriage is “simply not necessary.” This attitude is reflected in rising rates of common law marriage in Canada: as Global News reports, while only 6.3% of Canadians were in common law relationships in 1981, this figure jumped to 21.1% by 2016.
While common law couples may feel no emotional difference from any formally married couple, there are significant differences between some of the legal rights that common law and married couples enjoy. In the estates context in Ontario, for example, common law spouses are treated differently than married spouses when one spouse dies without a Last Will – also known as dying “intestate”. This blog summarizes the relevant law and difference in treatment, below.
Common Law Spouses Have No Entitlement on Intestacy
In Ontario, Part II of the Succession Law Reform Act RSO 1990, c S 26 (the “SLRA”) governs how one’s assets will be divided if a person dies intestate.
Pursuant to sections 44 and 45 of the SLRA, when a person dies intestate and leaves behind a surviving spouse and no children (or “issue”), the surviving spouse will be entitled to the entirety of the deceased’s estate.
If the deceased leaves behind a surviving spouse and any children, the surviving spouse will get the first $200,000.00 of the estate (being the current SLRA “preferential share” value). If there is one child, the remainder of any residue is divided equally between the surviving spouse and child. If there is more than one child, the spouse will receive a third of the balance of any residue, while the remaining children will share the other two-thirds equally.
If the estate’s net value after debts, funeral and administration expenses is less than the present SLRA’s “preferential share” value, the surviving spouse is wholly entitled to the deceased spouse’s estate, irrespective of whether there are any surviving children.
Notably, however, the definition of “spouse” in this section does not encompass couples who are not formally married. For the purposes of intestacy, the SLRA adopts the definition of spouse found in section 1 of the Family Law Act, RSO 1990, c F 3, which reads:
“spouse” means either of two persons who:
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)
As such, only married spouses are entitled to benefit under the intestacy regime. While a common law spouse may potentially seek redress by making a dependant’s support claim against their deceased spouse’s estate, for example, they are not entitled to a share of their deceased partner’s estate pursuant to the laws of intestacy.
Given the above, it is all the more important for common law spouses to turn their minds toward formulating an estate plan wherein they provide for their partner accordingly.
Thank you for reading!
Die-hard Raptors fans, band-wagon followers, and even sport-neutral citizens alike could not deny the energy in the Toronto air this past Friday, June 14. This day followed the Raptors’ historic four-point defeat of the Golden State Warriors in game six of the 2019 NBA playoffs the night prior, as well as the raucous, joyful celebrations which rang through the city until the early hours of the morning. The Raptor’s win marks the first time in their 24-season history that the Raptors will be graced with the title of NBA Champion.
In my view, one of the most interesting parts of the Raptors’ championship is the sense of community, togetherness and connectedness to Toronto which the team’s journey has inspired. On Friday morning, the CBC broadcasted clips of fans who had tuned in to cheer the Raptors to victory during game six, both in Toronto, across Canada and internationally. While some of the interviewed members of the Raptors’ diverse group of fans and followers were born in Toronto, many had since moved to reside permanently in other cities in Canada and across the world. Despite this, these fans still felt a strong patriotism to Toronto inspired by the team’s fight to the top. The diversity in the team’s fan network is also reflected in the Raptors’ own varied makeup: the team itself is comprised of players from several different countries, including Canada, the United States, England, Spain and Cameroon.
The diversity both in the team’s fans and in its members brought my mind to the legal concept of domicile. In an Estates context, there are two types of domicile: one’s “domicile of origin” is where they are born, whereas one’s “domicile of choice” connotes a new place where a party takes residence, with the definitive intention of residing there permanently. One may also abandon their domicile of choice. In Canada, domicile is determined on a province-to-province basis.
One’s domicile will determine which jurisdiction’s laws will be applicable in particular situations, such as in a dependant’s support claim circumstance, or when one seeks a grant of probate to administrate an Estate, for example. As my colleague Stuart Clark wrote about previously, however, two Canadian cases – Tyrell v Tyrell 2017 ONSC 4063 and Re: Foote Estate 2011 ABCA 1 – seem to suggest conflicting rules surrounding how domicile impacts the administration of one’s Estate. While the Alberta Court of Appeal in Re: Foote Estate stated that the domicile of the Deceased “determines the applicable law for estate administration purposes” – suggesting that it is the testator’s domicile that determines which jurisdiction’s laws are to govern the administration of an estate – the Ontario Court in Tyrell v. Tyrell stated that “for the purpose of administering the Will, the most significant connecting factor is the residence of the estate trustee.” In Tyrell, notwithstanding that the testator died domiciled in a foreign jurisdiction, the laws of Ontario governed the administration of the estate as the Estate Trustee was located in Ontario. Currently, there are no reported cases which cite Tyrell v. Tyrell has been cited to support this rationale. It will be interesting to see how the legal concept of domicile develops in this respect going forward.
In the meantime, we will see how sports, diversity, and the law intersect when the Raptors parade passes by the Hull & Hull offices this Monday.
Thanks for reading!
This past October, my colleague, Paul Trudelle, penned a thought-provoking blog on writing your own obituary. In addition to addressing some therapeutic benefits of drafting one’s own “last words”, Paul outlined tips to overcome the initial writers block that might accompany an “auto”-bituary task. He also noted some of the motivating personal questions that the exercise might force a writer to confront.
Further to Paul’s blog, I recently came across two articles – one in the New York Times, and one in the Globe and Mail – where the respective authors discuss their experiences writing both their own and others’ obituaries. This blog will canvas some of the authors’ reasons for why we should consider putting pen-to-paper on our own last words.
Easing the Grief of Loved Ones
Susan Gubar, author of the above-noted New York Times article and professor emerita of English at Indiana University, asserts that while some may fear that writing a self-obituary seems narcissistic, the outcome is ultimately anything but. She notes that writing one’s own obituary “can be a form of summation and of caregiving for those who may be in need of direction after we are gone.”
Writing one’s own obituary alleviates the responsibility that may otherwise fall on a friend or relative during an inevitably difficult period of time. Particularly given the short time frame within which loved ones are expected to submit an obituary, undertaking the obituary task for oneself can hopefully ease some stress for loved ones after one’s death.
Preparing the Words for Tricky Personal Issues
As the propensity for blended family structures steadily increases, so do the instances of complex and sometimes complicated family dynamics. Choosing to write one’s own obituary enables the writer to determine in advance how certain delicate, but important, relationships should be documented. In Gubar’s article, she recounts struggling with how to mention a friend’s divorced spouse while assisting to write her friend’s obituary, for example.
Gubar also recalls writing an personal essay where she wrested with her irritation towards the “corny sentences of a canned obit”. She highlights how many obituaries generally leave out the messiness, confusion, and unfinished tasks of the deceased. Writing one’s own obituary provides the author with the freedom to decide whether they want to smooth over the more tumultuous chapters of their lives, or to highlight these chapters in their own words.
Getting the Facts Straight
In Penny Lipsett’s article for the Globe and Mail, she identifies the daunting task that comes hand-in-hand with third-party obituary writing: information collection within a tight deadline. Lipsett notes that a third-party obituary writer “needs to check dates and other facts as the newspaper deadline looms.”
Even in one’s own life, it’s not unusual to mix up the dates of important milestones when simply trying to recount them off the cuff – I know I am guilty of this regularly. One can ensure that their timeline is fact-checked and accurate by taking the time to draft an obituary in advance.
Hitting the Highlights
In the infamous words of Toronto’s own 6-God, Aubery Graham (more commonly known by his moniker, Drake): you only live once. Writing one’s own obituary gives the writer the autonomy to capture the exact things that, in their view, made their life meaningful. As Gubar eloquently notes, the exercise of writing one’s own obituary can be crucial both in “conveying the import of an existence [and] the values informing it.”
As well, even a close family member or friend may not be aware of the pivotal events that have truly shaped their relative’s or companion’s life. In discussing this concept, Gubar recounts her friends’ children attempting to draft their father’s obituary: while they grasped the general outlines of their father’s trajectory as a university administrator, they were not as clear on “all the priorities that he might have wanted stressed.”
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Traditionally, the transition from adolescence into formal adulthood has been marked by certain milestones: moving in with one’s partner, engagements, weddings, and the first purchase of a car or house, for example.
Today, however, as Dr. Steven Mintz notes in this Psychology Today article on modern adulthood, the journey to achieving adult status is “far slower and much less uniform” than it was in previous generations.
The Canadian Encyclopedia reports that in recent years, the average age of first marriage in Canada is close to 30 years old for women, and 32 years old for men. This contrasts sharply with the 1960s and 1970s, when young people in Canada were more likely to marry between the ages of 23 and 25 years old.
Similarly, while the average young adult in the sixties could expect to achieve such “emblems of adulthood” as home ownership, marriage, children, and a stable job by around the age of 24, far fewer young adults in the 2000s will have attained these markers by this same period. According to Statistics Canada, 54% of men and 43.4% of women in Canada have never married by their early thirties. In Mintz’s article, he notes that rates of childbearing, homeownership, and even car ownership for young adults have also distinctly declined from those of past generations.
Notably, many of the traditional adulthood markers relate to asset accumulation – whether it’s the paycheque associated with a steady and lucrative job, or an investment in a home or vehicle, for example. With fewer millennials travelling down these conventional paths to adulthood, and arguably having fewer assets to their names, should today’s young adults be concerned with formulating a plan for their Estate?
In my view, the answer is yes. This blog will address three of many reasons to set up an Estate Plan as a young adult today.
- Your assets can be distributed to the beneficiaries of your choice, instead of being determined by Intestacy
In Ontario, Part II of the Succession Law Reform Act (the “SLRA”) governs how one’s assets will be divided if a person dies “intestate” – namely, without a Last Will.
As many young millennial adults are unmarried and without children, I will focus on subsections 47(3)-(11) of the SLRA. These subsections delineate how an estate will be divided if one dies without a will and has neither a spouse nor children (notably, common law spouses are not included as a “spouse” on intestacy). These rules can be summarized as follows:
- If the Deceased has no spouse and no issue, the estate goes to the Deceased’s surviving parents, equally.
- If there are no surviving parents, the estate goes to the Deceased’s siblings equally (and if a sibling has predeceased, that sibling’s share goes to their respective children).
- If there are no siblings, the estate goes to the Deceased’s nephews and nieces equally.
- If there are no nephews or nieces, it goes to the next of kin of equal degree of consanguinity – in some cases, distant relatives can end up inheriting from the estate, despite otherwise having no relationship with the Deceased.
- If there are no next of kin, the estate escheats to the Crown.
Making an estate plan empowers a party to decide specifically to whom their assets – of both financial and sentimental value – will go.
Importantly, and as we have blogged on previously, any unpaid debts of the Deceased, in addition to the expenses and liabilities of the estate (e.g. funeral expenses, taxes, legal fees, etc.), are a first charge on the assets of the estate, and must be paid by the estate before assets will be distributed to beneficiaries.
- You can choose who will manage your assets, limited or not
By way of a Last Will and Testament, one can appoint an Estate Trustee (or Estate Trustees) of their Estate. Among many other critical duties, the Estate Trustee is responsible for securing the assets of the Estate; settling any of the of the Deceased’s debts and taxes; ensuring the Deceased’s assets are distributed in accordance with the Deceased’s wishes; and, often, tending to funeral arrangements.
When a person dies intestate and an Estate Trustee is not appointed, the process of the administration of their Estate becomes much more onerous, potentially more expensive, and can be significantly delayed. By executing a Will which appoints an Estate Trustee, one can ensure that a responsible and trustworthy person, who is up to the task, will give effect to their final wishes and manage their estate effectively after death.
- You can document your intentions for your intangible, digital assets
This recent Globe and Mail article sums it up succinctly: neglecting to plan for one’s online assets can create “huge headaches” for executors, especially in light of Canadians’ “expanding digital footprints”.
In addition to those online assets which have true financial value – such as cryptocurrency, Paypal accounts, and some loyalty rewards programs – many digital assets, like Facebook or Instagram accounts, can have significant personal and sentimental value. By stating one’s preferences for digital assets management in an estate plan, one can better ensure that their wishes for these assets are honoured, and potentially reduce conflicts between loved ones that might otherwise arise in this respect. The Globe and Mail cites Facebook profiles as a prime example:
” … some loved ones may want a family member’s Facebook profile to remain active after they pass away, for remembrance; while others might want to delete the account, for closure.”
If this article has inspired to start your estate planning process, we encourage you to meet with a trusted Estates Lawyer to assist with your planning needs.
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Karl Lagerfeld – the iconic German designer best known for his work as creative director of Chanel and Fendi’s fashion houses – died this past Tuesday, February 19, at the age of 85.
In the wake of his death, news outlets have reported on a variety of different aspects of Lagerfeld’s illustrious life, from his legendary influence in the fashion industry, to his penchant for controversial commentary, to the impact his work has had on various celebrities and other household names. The articles that caught my eye last week, however, were those with headlines stating that Lagerfeld’s beloved pet cat, Choupette, was set to inherit his approximate $200 million fortune.
Choupette, a seven-year-old, white Birman cat, was one of Lagerfeld’s most cherished companions during his lifetime. Lagerfeld would regularly speak of his pet in human terms, referring to her as “Mademoiselle”, a “chic lady”, and calling her his favourite travel partner (the two would often travel together by private jet). Choupette reportedly has her own sets of customized Louis Vuitton cat-carriers, several personal maids, and a bodyguard, amongst other luxuries. She and Lagerfeld also often ate together, with Choupette dining on caviar and croquettes at the table, opposite Lagerfeld. As Lagerfeld’s right hand cat, she lived a life of extravagance of which many can only dream.
While Lagerfeld has suggested in past interviews that Choupette would be an heir to his vast Estate, the headlines about Choupette’s alleged inheritance drew my attention specifically for reasons of semantics: in Canada, at least, pets cannot technically hold or inherit assets themselves.
Although one may view their adored pet as a fellow family member, Canadian Law has a different perspective. In Canada, pets are legally treated as property – they are a “living asset” which will form a part of a deceased’s estate at death. In the words of Justice Danyliuk, writing in the Saskatchewan case of Henderson v Henderson, 2016 SKQB 282 : “…after all is said and done, a dog is a dog… a domesticated animal that is owned. At law it enjoys no familial rights”.
Given that it is impossible to give property to other property, a testator must come up with an alternative strategy to naming their pet as a beneficiary. For example, a testator could include a provision in their Will to gift their pets to a successive owner, and could leave a specific cash gift to the successive owner to cover costs associated with caring for their pets or pet. A formal “pet trust” – typically being a sum of money, held in trust, to be used only for the purpose of a pet’s care – could also be established to finance a pet’s care after an owner’s death
While many article titles may suggest that Choupette is personally set to inherit a portion of Lagerfeld’s Estate, it is more likely that Lagerfeld has used one of these alternative strategies to ensure his dear Mademoiselle can live comfortably for the rest of her life.
Thanks for reading!