Author: 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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