Author: Doreen So

24 Sep

The Applicability of Dismissal of Action for Delay to Estate Proceedings

Doreen So Continuing Legal Education, Estate & Trust, General Interest, Litigation Tags: , , , , , , 0 Comments

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.

In a recent decision, the Hon. Madam Justice Mesbur found that Rules 24.01 and 48.14 in respect of a dismissal of action for delay are not applicable to the dismissal of applications.

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:

[40] 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.[14]  Since this case is an application, r.24.01 does not apply.

[41]      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.[15]  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.

Thanks for reading and for listening!

Doreen So

22 Sep

The Limitation Period Applicable to Equitable Title

Doreen So Continuing Legal Education, Estate & Trust, General Interest, Uncategorized Tags: , , , , , , 0 Comments

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!

Doreen So

07 Aug

Elvis is Back in the Building

Doreen So Estate & Trust, General Interest, In the News, News & Events Tags: , , , , , , 0 Comments

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!

Doreen So

06 Aug

The Doctrine of Rectification and Proof in Solemn Form

Doreen So Estate & Trust, Estate Planning, Litigation, Wills Tags: , , , , , , , , 0 Comments

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.

Doreen So

 

 

 

04 Aug

The Death of Howard W. Jones, the father of American IVF

Doreen So General Interest, Health / Medical, In the News Tags: , , , , , , 0 Comments

Dovetailing on our last blog and Ian Hull and Nick Esterbauer’s paper on fertility law from an estates perspective, the world lost a great medical pioneer last Friday.

Howard W. Jones, the surgeon who pioneered in vitro fertilization in the U.S., passed away at the age of 104 on July 31, 2015. The work of Dr. Howard Jones and his late wife Dr. Georgeanna Jones led to birth of the first American child as the result of in vitro fertilization in 1981. Dr. Howard Jones was 70 years of age at the time of this groundbreaking triumph.   Since that time the Jones Institute for Reproductive Medicine at the Eastern Virginia Medical School has helped bring 4,000 children into the world through in vitro fertilization.

Despite his advanced age, Dr. Howard Jones never fully retired. He maintained office hours at the Institute even after his 100th birthday. Even more incredibly, Dr. Howard Jones published a memoir on in vitro fertilization last year and he was working on a new book of his late wife’s accomplishments as a reproductive endocrinologist at the time of his death.

To date, more than 5 million births have occurred as the result of in vitro fertilization around the world. As reproductive technologies such as in vitro fertilization continues to help individuals around the world achieve pregnancies, one can only imagine the various implications that donated sperm/eggs and surrogacies may have on will drafting and the laws of intestacy.

Thanks for reading!

Doreen So

02 Dec

Where in the World is Casey Kasem?

Doreen So Executors and Trustees, Funerals, General Interest, In the News 0 Comments

The legendary Top 40 Countdown DJ, Casey Kasem, passed away in June, 2014 after a dramatic Hollywood style guardianship dispute between Casey’s wife, Jean Kasem, and his daughter from a prior relationship, Kerri Kasem.  The “dad-knapping” of this famous American from California to Seattle while he was still alive has already been covered by our very own Jordan Atin here for those of you who are interested in the first volume of what is turning out to be a never-ending battle between Jean and Kerri.

However as a quick recap, Casey was taken from a nursing home in California where he was kept alive through a feeding tube and transported to a friend’s home near Seattle against all medical advice.  Jean allegedly disconnected the feeding tube herself and removed Casey from the nursing home without notifying anyone else in Casey’s family.  Casey was eventually located after a nation-wide man hunt and Kerri was named as his conservator (the American equivalent to a guardian).  Casey then passed away shortly in Washington after a Court gave permission to remove Casey from life support.

Now fast forward to December, 2014 and Casey’s body seems to have found its way to…

Oslo, Norway (!)

While Kerri’s claims that Casey wished to be buried in Glendale California, his home for 53 years, Jean has removed Casey’s body from the U.S.A. altogether.  According to Forbes, Jean used her authority as Casey’s next of kin to fly him to Oslo, Norway… through Montreal, Quebec.

Kerri claims that Jean’s motivation to bury Casey in Norway is to evade criminal, elder abuse investigations involved in the “dad-napping” incident.  In an attempt to lay her father to rest in California, Kerri wrote a letter to Norwegian officials signed by Casey’s family and friends and she also started an online petition to stop her father’s burial which gathered 24,000 signatures.  While Kerri appears to be successful for the time being in preventing the burial of her father in Norway, his body remains in Oslo today.

As dramatic as the story of Casey Kasem has turned out to be, it is important to be mindful that a person’s desired burial arrangements are not binding on his or her estate trustee in Ontario.  Even if a testator has expressed his intention to be buried in a certain place and in a certain manner, that intention is only a wish and it is within the discretion of the estate trustee to provide alternate arrangements as he or she deems appropriate.  Only in rare cases have we seen case law where family members were successful in challenging an estate trustee’s discretion with regard to the burial arrangements.

One can’t help but imagine how different the Casey Kasem story would have been if he was an Ontario resident with a Will which named his daughter Kerri as the estate trustee.

Thanks for reading!

Doreen So

 

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