Author: Doreen So
Frank Sinatra Jr. was the son of Frank Sinatra. Sinatra Jr. was born on January 10, 1944 and he began to study music from the age of 5.
At age 19, Sinatra Jr. was kidnapped from his Nevada hotel room until his father paid his kidnappers a ransom of $240,000.00. His kidnappers even attempted to argue a defense that the whole incident was a publicity stunt, orchestrated by Frank Sinatra to promote his son’s music career.
According to the FBI, the clincher in the case against Sinatra Jr.’s kidnappers was a confession letter left in a safety box.
Four decades after the kidnapping, one of Sinatra Jr.’s kidnappers commenced legal action in California to review the “Son of Sam” law that prevented criminals from profiting from their crimes. After serving his sentence for kidnapping, Barry Keenan told the story of the Sinatra Jr. kidnapping to a writer, who then sold the movie rights to Columbia Pictures for a reported $1.5 million. This led Keenan to commence a lawsuit to strike down the “Son of Sam” law in California on the basis that it violated his First Amendment rights. Ultimately, the California Supreme Court agreed because the law inhibited free speech in an overly inclusive manner. Click here for an interesting article on how California and Massachusetts came to strike down their Son of Sam laws in 2002.
Kidnappings and Son of Sam laws aside, Sinatra Jr. was a musician like his father. He even spent the last seven years of his father’s life as Sinatra’s conductor on tour. Despite his lack of success as an original recording artist, Sinatra Jr. was reported by People Magazine to have made peace with his place in musical history. Sinatra Jr. spent the remaining years of his life touring in a band named Sinatra Sings Sinatra with other members of his father’s band.
Sinatra Jr. died on tour this Wednesday, March 16, 2016.
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Earlier this week, I blogged about the Ontario Court of Appeal decision in Neuberger v. York, 2016 ONCA 191, and the first lesson from this case. The second lesson from this case is that the doctrine of estoppel is not permitted to bar challenges to the validity of wills.
As a short recap of the facts from my prior blog, the late Chaim Neuberger was Edie’s father. Edie and, her sister, Myra, were the named Estate Trustees of the 2010 Wills. Between the death of Edie’s father on September 25, 2012, and the commencement of Edie’s challenge of the validity of the 2010 Wills on December 19, 2013, Edie was found by the lower court to have taken steps as an Estate Trustee. Such steps were, for example, the payment of taxes and the redemption of preference shares. This led the lower court to apply the doctrine of estoppel by representation to stop Edie from challenging the 2010 Wills (see Neuberger v. York, 2014 ONSC 6706).
On this point, the Court of Appeal disagreed. The Court of Appeal unanimously took the view that estoppel by representation and estoppel by convention do not lie to bar a challenge to the validity of a will (at paragraph 103).
The Hon. Justice Gillese found that the test for estoppel, as articulated by the Supreme Court of Canada in Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co.,  S.C.R. 932, is not applicable in probate matters. Canadian Superior Oil was found to deal with promissory estoppel in the context of a private lease agreement between two individuals, which is “fundamentally different than is the question of the validity of a will” (at paragraphs 104 to 108).
As a matter of public policy, the Hon. Justice Gillese stated as follows (at paragraph 118):
“estoppel is animated by the goal of creating transactional certainty between private parties in civil disputes. A will, however, is more than a private document. As explained above, a dispute about a will’s validity engages interests that go beyond those of the parties to the dispute and extend to the testator and the public. Once a testamentary instrument is probated, it speaks to society at large. Probate is an in rem pronouncement that the instrument represents the testator’s true testamentary intentions and that the estate trustee has lawful authority to administer the estate. Because of this, the court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated. It owes that duty to the testators, whose deaths preclude them from protecting their own interests, to those with a legitimate interest in the estate, and to the public at large. If the doctrine of estoppel were available to bar a party from having the validity of a will determined, the court’s ability to discharge that responsibility would be in jeopardy.”
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Lessons from Neuberger Part 1: Does an interested person have an automatic right to proof in solemn form?
The Ontario Court of Appeal released not one, but two, decisions last week in relation to a Will Challenge proceeding. In addition to Spence v. BMO Trust Company, 2016 ONCA 196 (which is well covered by the media, and by our blog here), the Court of Appeal also released the decision of Neuberger v. York, 2016 ONCA 191.
The case of Neuberger v. York involves the Estate of Chaim Neuberger. The late Chaim Neuberger was a holocaust survivor, and Toronto real estate mogul, whose success equated to a fortune of over $100 million on his death according to the National Post. Chaim was predeceased by his wife, Sarah Neuberger, and he was survived by his daughters, Edie Neuberger, and Myra York, and the adult children of Edie and Myra. Edie and Myra were the named Estate Trustees of Chaim’s 2010 Wills, as well as his prior 2004 Wills.
Chaim passed away on September 25, 2012, and Edie brought an application to challenge the validity of Chaim’s 2010 Wills on December 19, 2013. In January, 2014, Edie’s son, Adam, also brought a motion to challenge the validity of Chaim’s 2010 Wills, amongst other relief. Edie’s Will Challenge was dismissed at first instance, along with Adam’s Will Challenge.
On appeal, Adam argued that an “interested person” is entitled, as of right, to have a Will proved in solemn form, prior to a grant of probate. Adam argued that this right stems from Rule 75.01 of the Rules of Civil Procedure, which reads as follows:
FORMAL PROOF OF TESTAMENTARY INSTRUMENT
75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.
On this point, the unanimous Court of Appeal disagreed. The Hon. Justice Gillese considered a plain reading of Rule 75.01, in conjunction with Rule 75.06, and determined that an “interested person” may request proof in solemn form but cannot require it (at paragraph 84). Moreover, “the court has a discretion whether to order that a testamentary instrument be proved, as well as a discretion over the manner in which the instrument is proved” (at paragraph 87). The correct approach to Rule 75.06 requires an applicant, or moving party, to “adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded” (at paragraph 89).
Thanks for reading! Stay tuned this week for more lessons from Neuberger.
The “death” of Alyanna Lapuz was recently “fixed” by the Canada Revenue Agency after Ms. Lapuz received a letter addressed to the “Estate of the Late Alyanna Lapuz”, dated January 7, 2016. Ms. Lapuz was shocked by the letter because she was 21 years old and eagerly awaiting the start of a dental hygienist program in April.
According to Ms. Lapuz, she believes that the error may have occurred when she called the CRA to arrange for a direct deposit of her GST refund. Ms. Lapuz then became quite concerned that the error would affect her student loan application because her social insurance number was rendered invalid as the result of being clerically deceased.
Click here for the CBC’s coverage of Ms. Lapuz’s story.
Ms. Lapuz’s story is also not unique. A similar incident was previously covered by our blog here.
According to the CBC, 5,489 Canadians were erroneously entered as deceased in the CRA’s system between 2007 and 2013. In a statement to the CBC, CRA advised that the rate of such errors has decreased since 2013.
For those of you who are interested, click here for the Ombudsman Special Report on this very issue.
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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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