Author: Doreen So
In 1974, Lord Lucan, British aristocrat (think James Bond and Martinis, according to the New York Times), vanished after the body of his children’s nanny was found dead in the basement of his house.
A year later, in 1975, Lord Lucan, otherwise born as Richard John Bingham, the seventh Earl of Lucan, was declared the killer of his children’s nanny. Since 1974, Lord Lucan was never found notwithstanding an international Scotland Yard manhunt.
25 years later, Lord Lucan was declared dead in 1999, which allowed for the devolution of his assets to his Estate.
By virtue of a law that came into effect in 2014, Lord Lucan’s son, George Charles Bingham, petitioned the Court for a death certificate in order to become the eighth Earl of Lucan. Neil Berriman, the son of the murdered nanny, opposed Mr. Bingham’s petition for a death certificate on the basis that Lord Lucan could still be alive.
42 years later, the High Court has ruled that Lord Lucan is now presumed dead and a death certificate was issued on February 3, 2016.
In Ontario, the Declarations of Death Act, 2002 governs the relief sought by Mr. Bingham in London. An Application may be made to the Superior Court of Justice for a declaration that an individual has died if i) the individual disappeared in circumstances of peril; or ii) if the individual has been absent for seven years.
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David Bowie’s Last Will and Testament was filed last Friday in Manhattan’s Surrogate’s Court.
The Bowie Estate is purported to be worth $100 million. Bowie’s wife, Iman, will receive one-half of the Estate, in addition to their SoHo apartment, in a trust managed by a “pair of New York lawyers” according to Vanity Fair. As reported by Page Six, the executors of the Bowie Estate, William Zysblat and Patrick “Paddy” Grafton Green, will pay Iman income from the trust four times a year. Iman will also have the right to seek additional funds paid to her in support of her “health, education and maintenance”.
Bowie’s son, Duncan Bowie, will receive one-quarter of the assets of the Estate outright.
Bowie’s daughter, Lexi Bowie, who is presently 15 years old, will receive the remaining quarter of the Bowie Estate when she turns 25 years of age. Lexi will also inherit Bowie’s vacation home in up-state New York at that time.
Various members of Bowie’s staff were also provided with sizeable cash bequests.
In addition to carrying out Bowie’s estate plan, the executors of the Bowie Estate were directed to transport Bowie’s remains to Bali so that he may be cremated in Bali in accordance with the Buddhist rituals of the country. While recognizing the potential difficulties in carrying out this task, Bowie’s Will also allows for his cremation to take place elsewhere, and for his ashes to be scattered in Bali.
In Ontario, there is no legal requirement for an estate trustee to follow the directions of the testator as it relates to manner and place of the burial. Such wishes are merely precatory.
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One of the purposes of having viva voce testimony at trial is so that the trier of fact is able to determine a witness’s credibility and attach the appropriate weight to his/her evidence.
While the determination of a person’s credibility may appear to be a rather personal assessment, according to Madam Justice D.A. Wilson, this is not case at law:
 As I noted in Rider v. Grant, 2015 ONSC 5456 (CanLII) at para. 90:
In deciding issues of credibility, it is not simply a matter of accepting the evidence of one party over another based on how the witness performed in the witness box. Rather, “the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” Faryna v. Chorny,  2 D.L.R. 354 (B.C.C.A.)
Moreover, in the case of 1483677 Ontario Ltd. v. Howard, 2015 ONSC 6217, as excerpted above, Justice Wilson did not find a particular witness to be worthy of belief where,
- there were discrepancies between the witness’s testimony at trial and his evidence during an examination for discovery; and
- the witness was unable to provide a reasonable explanation for the discrepancies between his testimony and the documentary evidence, such as e-mails.
On the other hand, a different witness who responded to questions directly, and without hesitation, even if his answer may have an negative impact on his case was found to be “forthright” and “honest”. The objectivity and fairness of a witness’ testimony was also preferred.
Happy Friday and thanks for reading!
The Honourable Mr. Justice Thomas McEwen spoke at the Estates Litigation Networking Reception hosted by the Advocate’s Society on November 23, 2015.
Justice McEwen was appointed to the Superior Court of Ontario in June, 2009 and he is currently the Civil Team Leader and Head of the Estates List in the Toronto Region. Justice McEwen spoke at length on various issues that he wishes to convey to the estates bar which is my pleasure to reiterate on this blog.
Given the volume of matters on the Estates List, Justice McEwen noted that the Court should be provided with notice of a settlement as they occur, rather than last minute notice near the time of a scheduling appointment or hearing. He advised that too many days on the list are being lost by last minute cancellations. Notice of a settlement may be provided to the Court by e-mail to email@example.com.
Moreover, he spoke of the fact that each 9:30 scheduling appointment is allocated with ten minutes of time and counsel are expected to converse with one another and resolve as much as possible prior to entering the Judge’s chambers.
In cases where there are issues relating to persons under disability on a motion for directions, the Court prefers that counsel request 10:00 a.m. hearings, rather than 9:30 a.m. scheduling appointments, in order to provide the Judge with 20 minutes to canvas such issues with counsel. Moreover, it allows the Judge to have the benefit of being able to review the full record in advance.
Lastly, communication between counsel is key in order to avoid unnecessary motions for directions.
Click here to review the Consolidated Practice Direction Concerning the Estates List in the Toronto Region as well as the relevant parts of the Consolidated Provincial Practice Direction, the Consolidated Practice Direction for Divisional Court Proceedings as well as any other relevant Toronto region-specific Practice Directions and Guides.
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Yesterday was the kick-off of the 1st annual Family Dispute Resolution Institute of Ontario (“FDRIO“) Conference, the purpose of which is to bring together family dispute resolution professionals, clients, and legislators to share their knowledge, skills and experience. The FDRIO is an organization that deals with family disputes, during all stages of life, which includes estate and elder care issues.
As an example of the overlap between family law and estate proceedings, the Family Law Rules Form 13.1: Financial Statement (Property and Support Claims) is often used as affidavit evidence of a support claimant’s assets, means, and needs within a claim for dependants relief pursuant to Part V of the Succession Law Reform Act.
As of May 2, 2015, the Family Law Rules were amended to include a category for income from a registered retirement income fund or annuity and a new Form 13A: Certificate of Financial Disclosure. The new Form 13A requires the claimant to list all documentation in support of a party’s support and/or property claims. This list is required to be served on all parties at the commencement of proceedings and to be updated throughout the litigation.
While there is no requirement to enclose a similar list of supporting documentation within a claim for dependants relief, this type of disclosure may streamline the productions process and facilitate settlement discussions by indicating the documents in the claimant’s possession and his/her readiness to substantiate their claim for dependants relief. The new Form 13A is also a helpful tool to guide clients with the type of documents that they should be prepared to disclose throughout litigation.
Click here for links to the Ontario Family Law Rules Forms, and, for those who are interested, click here for information in respect of the new Ontario Family Law Rules which came into force and effect this May.
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The concept of legal and equitable ownership is constantly evolving as our blog has documented over the years. In a world where anything is possible, the viral photograph of the “Monkey Selfie” has led to a new lawsuit by PETA to extend copyright laws to animals.
The “Monkey Selfie” is a series of photographs that were taken by a black macaque during a photo-shoot set up by nature photographer, David Slater. Mr. Slater travelled to North Sulawesi, Indonesia in 2011 for the purpose of photographing black macaques when one of the black macaques took control of his camera and began pressing the shutter button resulting in hundreds of photographs. While most of the photographs were blurry or unremarkable, a handful of these photographs captured a facial portrait of the black macaque, Naruto, smiling and grinning at the camera.
Eventually, the infamous “Monkey Selfie” was posted on Wikipedia for free distribution around the world wide web. To Mr. Slater’s dismay, Wikimedia took the position that there is no copyright attached to these photographs because they were not taken by a human being (see here). In 2014, the US Copyright Office issued a compendium of its policies which included a new stipulation that only works produced by human beings may be registered for copyright.
As the result, PETA, People for the Ethical Treatment of Animals, is now suing, on behalf of Naruto, to claim copyright to the “Monkey Selfie”. According to PETA, as reported here by CNN, “authorship; under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto”.
For good measure, click here for an “elphie” to round out your #Friday morning.
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As of January 1, 2015, the Ontario Rules of Civil Procedure were amended such that all actions not set down for trial will be automatically dismissed within five years of their commencement. Pursuant to Rule 48.14(1), unless the court orders otherwise, the Registrar shall dismiss an action for delay if the action has not been set down for trial or terminated by the fifth anniversary of the commencement of the action (or by January 1, 2017 if the action was commenced prior to January 1, 2012) subject to a list of statutory exceptions.
The Applicant in Michie v. Turalinski, 2015 ONSC 5491, brought an application to require an Estate Trustee Without a Will to file a Statement of Assets of the Estate on March 17, 2011. Notwithstanding the court ordered timetable for next steps, cross-examinations did not occur and counsels’ attempts to schedule cross-examinations appears to have ceased in or about 2012.
Ultimately, the Court ruled against the Respondent’s motion for dismissal for delay and provided the following comments in respect of the statutory authority for this relief:
 Ronald has framed his motion under rule 24.01 of the Rules of Civil Procedure. That rule sets out the circumstances in which the court may dismiss an action for delay. The rule does not apply here, since the rule applies to actions but not to applications. Since this case is an application, r.24.01 does not apply.
 Ronald also relies on rule 48.14 to support his positon. Rule 48.14 deals with the circumstances when the Registrar is required to dismiss an action for delay. The rule was amended effective January 1, 2015, and now provides that the Registrar shall dismiss an action for delay if it has not been set down for trial within five years after the first defence is filed. Again, the rule deals with actions not applications, but even if it did, Susan’s application was commenced in March of 2011. Five years have not elapsed since then, and thus cannot have elapsed since delivery of any response to it. If this application were an action, rule 48.14 would not require the Registrar to dismiss it. In any case, Ronald has never really delivered a response to the application itself, which would be equivalent to a defence.
Please click here if you are interested in our podcast of the recent Regulations amending the Rules of Civil Procedure.
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The doctrine of constructive trust was recently applied earlier this year to register a transfer of a parking space to an applicant who entered into an agreement of purchase and sale of a condominium in 1997.
In Chopra v. Vincent, 2015 ONSC 3203, the Applicant Chopra agreed to purchase a condo from the Respondent Vincent on June 30, 1997. The Agreement of Purchase and Sale between the parties expressly provided for the purchase of a condominium unit and a related parking space. Since 1997, the Applicant Chopra lived in the condo unit, parked in the parking space, and paid related expenses such as common area charges and property tax.
18 years later, the Applicant discovered that the lawyers for the vendor and purchaser neglected to include a transfer of the parking space which has a separate PIN from the condominium unit. Once discovered, the Applicant Chopra sought a declaration of his ownership of the parking space in order to sell the parking space along with the condominium unit while the Respondent Vincent could not be located.
The Court found that equitable title to the parking space was transferred to the Applicant, notwithstanding the inadvertence of the legal transfer of title, on the basis that the Applicant had paid the agreed purchase price in full consideration for a transfer of the condominium unit and the parking space.
According to Justice Dunphy,
“The right of a beneficiary of a constructive trust to enforce his or her title as against the trustee is governed by the Real Property Limitations Act, R.S.O. 1990, c. L-15 (the “RPLA”): McConnell v Huxtable, 2014 ONCA 86 (CanLII). Section 2(1)(a) of the Limitations Act, 2002 provides that it does not apply to a proceeding to which the RPLA applies. Under the RPLA, there is a ten year limitation period (RPLA, s. 4) for an action to claim an interest in land. However, where the interest in land claimed is an equitable title under a constructive trust, the limitation period is subject to the principle of discoverability (McConnell v. Huxtable, supra, at para. 53-54) or possibly is governed by s. 5(1) of the RPLA and only begins to run from the time of dispossession (which has not occurred). In either event, there can be no question of the limitation period having run since the applicant has not been dispossessed and only discovered the error in connection with preparing to sell his condominium over the past few months and has acted promptly.”
Thanks for parking your attention here as always!
Elvis may left the building in 1977 but a new album will be released in October which will feature his music and that of the Royal Philharmonic Orchestra. This new exciting album will be called “If I Can Dream: Elvis Presley with the Royal Philharmonic Orchestra”. The album will even feature a duet with Michael Buble on “Fever”.
Decades after his death, the Elvis Presley Estate is immensely successful and active in developing new projects with Elvis’ brand and music. According to Forbes magazine, the Elvis Presley Estate earned $55 million U.S. dollars last year, second only to the Michael Jackson Estate.
The intellectual property rights associated with Elvis’ music is presently owned by the Authentic Brands Group which is a brand development, licensing and entertainment company. In today’s world of hologram technology, Elvis may be touring in live performances to come as a “virtual King of Rock ‘n’ Roll” that is capable of travelling of world.
For now, Elvis is already back in the building in Graceland in Las Vegas.
Since its Friday morning, click here for “It’s Now or Never” before the weekend begins.
Have a good one!
An interesting decision was recently released from the Brampton Superior Court of Justice which considered whether the Court’s rectification of a will in a prior proceeding precludes the Court from requiring that same will to be proven in solemn form on a subsequent motion.
The details of the initial rectification proceeding in McLaughlin v. McLaughlin, 2014 ONSC 3161, have been extensively covered by our blog here and here (bonus points to our dedicated readership if you recall the comments of our very own Jonathon Kappy in the Law Times on this subject). Ultimately, Justice Lemon rectified the secondary will of Elizabeth Anne McLaughlin such that the revocation clause therein would not have the effect of nullifying the validity of the primary will that was executed on the same day, in addition to rectifying various other drafting errors. A finding was made after a full hearing that neither the testatrix, nor the drafting solicitor, could have failed to detect the patent errors in the secondary will if they read the will.
Despite the Applicant’s success in the rectification proceeding, the issue of his sibling’s Notice of Objection to the probate of the primary will remained before Justice Price in McLaughlin v. McLaughlin, 2015 ONSC 4230, and he was left to consider the preliminary issue of whether Justice Lemon’s prior ruling precluded the Court from requiring both wills to be proven in solemn form. Given that there were no issues with the testatrix’ testamentary capacity, the issue before Justice Price in respect of the validity of the secondary will was whether the testatrix understood and approved of its contents in light of the prior finding that she could not have read the secondary will on a balance of probabilities.
After a review of the jurisprudence on the doctrine of rectification in Robinson Estate v. Rondel, Justice Price concluded as follows,
“Rectification is concerned with correcting the drafting errors of the will, whereas the proving of a will in solemn form concerns the validity of the will. These issues are substantively different, and I am therefore satisfied that I would not, in effect, be reversing Lemon J.’s decision as to rectification of the secondary will should I find that will to be invalid.”
While Justice Price found that the Court was not precluded from considering the validity of the secondary will subsequent to its rectification, Justice Price ultimately found that the secondary will was invalid on the basis of Justice Lemon’s finding that the testatrix did not read the will nor did she have knowledge and approval of its contents.