Author: Doreen So
Pursuant to section 2 of Part I of the Succession Law Reform Act,
“A person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity…”
The interpretation of the term “will” is defined under section 1 of the Act to include,
“(a) a testament,
(b) a codicil,
(c) an appointment by will or by writing in the nature of a will in exercise of a power, and
(d) any other testamentary disposition.”
The question of what constitutes a will was a topic of the recent Law Society of Upper Canada Practice Gems: Probate Essentials 2016 program on September 20, 2016 (click here if you are interested in a copy of the program’s agenda).
As an example from the program materials, Canada Permanent Trust Co v Bowman,  SCR 711 was a case in which the Supreme Court of Canada found a handwritten document in a cardboard box of the deceased’s home to be valid where, “read as a whole”, the document showed the implicit intention of a testator who wished for certain dispositions of her property following her death. The document in question listed certain people with dollar amounts or items beside each name, such as, “Ena $1,000.00 in National Trust” and “Laura—fur coat”.
An even more famous example may be found in Ian Hull’s prior blog on the testamentary disposition that was carved on the bumper of a tractor by an unfortunate farmer while he was trapped under its weight. The farmer did not survive and following engraving can be discerned from the bumper, “In case I die in this mess, I leave all to the wife. Cecil Geo Harris.”
Thanks for reading!
CBC News recently reported on two cases of elderly couples who were forced to live apart in different care facilities in British Columbia.
William and Anita Gottschalk were forced to live apart after 62 years of marriage because the family could not locate a single facility that would accommodate their different levels of need. William, 83, suffers from dementia and lymphoma and requires greater care than his wife Anita. According to CBC News, William was recently transferred to a facility, blocks from Anita, to allow him to receive the care that he requires while he waits for an opening in Anita’s facility. To date, they have been separated for eight months.
Alfred, 95, and Emma, 87, Sagert also found themselves in a similar position when Emma was no longer able to return to the facility that she shared with Alfred after suffering several small strokes. The Sagert family did the best that they could to transport Alfred to Emma’s new facility “because they just needed to be together”. Happily, Alfred and Emma were also reunited sometime this spring, although the family believes that Emma’s health diminished as a result of her loneliness during their separation.
BC (Fraser Health) officials advised that reunification of couples like the Gottschalks and Sagerts are a priority and that 92 couples have been reunited in the course of the past year and a half. Interestingly enough the BC Community Care and Assisted Living Act, contains a Patient’s Bill of Rights which specifies a person’s right “to be treated in a manner, and to live in an environment, that promotes his or her health, safety and dignity”.
Hopefully it will be only a matter of time before the Gottschalks are reunited.
Thanks for reading.
I was reminded today by this insightful article by Bryan A. Garner, titled “10 Tips for Better Legal Writing”, that secondary sources are an important component of legal research.
In addition to the 5th edition of Probate Practice, Ian M. Hull and Suzana Popovic-Montag are also co-authors of the 4th edition of Feeney’s Canadian Law of Wills, along with James MacKenzie. Both of which were recently released.
The 4th edition of Feeney’s provides a straightforward commentary on the existing probate and estate administration regimes, in addition to in depth commentary on the applicable case law. The 4th edition of Feeney’s is a resource that draws from statute and case law across all provinces of this country as well as the Commonwealth and the U.S.
As an example, the 4th edition of Feeney’s was recently cited in Vanier v. Vanier, 2016 ONSC 4620, for the following summary of the law on undue influence (at paragraph 10),
“In general, to establish undue influence, the burden of proof rests with the party alleging it. The extent of the influence must amount to coercion; simple influence is not enough. The testator’s free will must be overborne. Put another way, it is not improper for any potential beneficiary to attempt to influence the decision of the testator provided the pleading does not amount to coercion and the latter continues to act as a free agent. “Some begging is permissible.” See Feeney’s Canadian Law of Wills, 4th at 3.10 to 3.14; Hall v. Hall (1868), L.R. 1 P. & D. 481.”
All 18 chapters of this loose-leaf are available for purchase here at the LexisNexis Online Store.
Thanks for reading.
Gene Wilder, star of “Willy Wonka and the Chocolate Factory”, an iconic children’s movie, which is at its core a story about succession planning, died this week at 83 years of age.
The theme of succession planning also made an appearance in Wilder’s memoir, “Kiss Me Like a Stranger: My Search for Love and Art”, as excerpted from this New York Times article,
“What seems to be the trouble?” the therapist asks.
“I want to give all my money away,” he says.
“How much do you have?”
“I owe three hundred dollars.”
In a public statement, Gene Wilder’s nephew, Jordan Walker-Pearlman, announced that Wilder died of complications from Alzheimer’s disease, a condition that was previously kept from public knowledge. According to Variety, Walker-Pearlman explained that the decision to keep Wilder’s condition private was so that “the countless young children that would smile or call out to him as ‘there’s Willy Wonka’, would not have to be then exposed to an adult referencing illness or trouble and causing delight to travel to worry, disappointment or confusion”. Despite his condition, Walker-Pearlman stated that Wilder never lost his ability to recognize those closest to him, nor did his condition take “command of his central-gentle-life affirming core personality”.
Thanks for reading.
Last night, 500 Miles for Parkinson’s celebrated the completion of 500 miles by its participants. The party featured surprise guests and old friends with the proceeds contributing to the charity’s fundraising goal.
Three days ago, Harry McMurtry, Sue Thompson and Ross Sugar concluded their trek on foot to Toronto from New York. Each of them suffers from Parkinson’s disease. The event, known as 500 Miles for Parkinson’s, began on May 7th and ended on June 20th. They seek to promote awareness of the illness.
Their aim was to raise $500,000 for research which would be divided by three charities: The Michael J. Fox Foundation for Parkinson’s Research, Morton and Gloria Shulman Movement Disorders Centre and The Edmond J. Safra Program in Parkinson’s Disease at the Toronto Western Hospital (led by Dr. Anthony Lang) and Mount Sinai Beth Israel Movement Disorders Center in New York (led by Dr. Susan Bressman).
Parkinson’s disease affects the brain’s ability to produce dopamine. This interferes with the body’s ability to move normally.
If you wish to make a donation you can visit 500 Miles for Parkinson’s.
Thanks for reading!
According to statistics posted on the Ontario Trillium Gift of Life Network website, there were a total of 1,546 persons waiting for an organ transplant as of June 20, 2016. According to beadonor.ca, 29% of Ontarians are registered organ donors, which is 3.5 million people out of an eligible population of 12.0 million.
I was touched when I read the recent commentary that was published by the Star, which was written by Beth and Emile Therien. Beth and Emile Therien are the parents of Sarah Beth Therien, who died 10 years ago and who revolutionized organ donation in Ontario.
When Sarah Beth died, organ donation was only available when a person had been declared brain dead. According to Sarah Beth’s parents, such deaths only occur in 1 to 2% of hospital deaths and Sarah Beth did not fit into this category of donors.
However, Beth and Emile Therien knew that their daughter was not coming back and they knew that she believed strongly in organ donation. With the help of the Ontario Trillium Gift of Life Network and the Ottawa Hospital, Sarah Beth became Canada’s first organ donor whose organs were donated after the withdrawal of life support, which is otherwise known as donation after cardiocirculatory death (“DCD“).
Since Sarah Beth’s death in 2006, 1,067 transplants have been performed in Ontario with organs that were donated after cardiocirculatory death. According to Beth and Emile Therien, one third of deceased donors in Ontario, today, are DCD donors.
Here on our Hull & Hull website, we have published a Toolkit for Legal Professionals which includes precedent letters to assist legal professionals in advising their clients about organ donation. This Toolkit was developed by Ian M. Hull, along with Sam Marr of Landy Marr Kats LLP, in consultation with the Ontario Trillium Gift of Life Network.
I would also like to take this opportunity to encourage anyone who is interested in registration, or in learning more about this topic in general, to visit https://www.beadonor.ca/ and https://www.giftoflife.on.ca/en/
Thanks for reading,
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.
Thanks for reading this week.
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.”
Thanks for reading!
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.
Thanks for reading!