Author: Hull & Hull LLP
In Marsden Estate (Re),  N.B.J. No. 295, upheld on appeal at  N.B.J. No. 304, the deceased was seen by a solicitor and gave instructions for the preparation of a will on September 19, 2016. She died the next day, before the will could be signed.
The estate trustee under the impugned will brought an application to prove the will. She relied on s. 35.1 of New Brunswick’s Wills Act. This section provides:
35.1 Where a court of competent jurisdiction is satisfied that a document or any writing on a document embodies
(a) the testamentary intentions of the deceased, or
(b) the intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will,
the court may, notwithstanding that the document or writing was not executed in compliance with the formal requirements imposed by this Act, order that the document or writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act.
The matter was contentious, as two of the testator’s children were essentially excluded from the will. The testator told the solicitor that she had been estranged from them for some time.
The court relied on affidavit evidence, including the affidavit of the drafting solicitor. The court concluded that the unsigned will reflected the testator’s “deliberate, fixed and final expression as to the disposal of her property upon her death”. Further, the court was satisfied that the testator had testamentary capacity, and was not being unduly influenced.
In earlier blogs, we reported on similar applications under similar “substantial compliance” legislation. An Alberta court considered the legislation but declined to apply it where there was an absence of clear and convincing evidence that the deceased failed to execute the will by inadvertence or mistake. An Australian court went as far as admitting an unsent text message to probate.
In Ontario, the doctrine of strict compliance continues to apply. As stated by Nick Esterbauer in his blog of December 11, 2017, it will be interesting to see if Ontario legislation opens the door to substantial compliance in the future. To date, it has not.
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Nova Scotia is proposing legislation that will make it the first jurisdiction in North America to adopt “presumed consent” around organ donation.
Under the Human Organ and Tissue Donation Act, all people in Nova Scotia will be presumed to agree to organ donation upon their death, unless they opt out. The Act does not apply to those under 19, or those without decision-making capacity. In those cases, a parent, guardian or alternate decision maker may consent on their behalf.
The Act will not be proclaimed immediately: it is to take effect in 12 to 18 months, so as to allow for public education and support for health care workers.
Under previous Nova Scotia legislation, the right of a family member to veto an organ donation decision made by a deceased was removed. See our blog on the topic, here.
Several European countries already have presumed consent laws for organ donation.
In Ontario, the current system is an “opt-in” system, rather than an “opt-out” system. Under the Trillium Gift of Life Act, consent must be given prior to the removal of organs after death. The person must be at least 16 years of age. In addition to the person, other persons are entitled to consent on the person’s behalf. These include,
- a spouse, either married or common-law;
- if there is no spouse or the spouse is not readily available, the person’s children;
- if there are no children, or if none are readily available, either of the person’s parents;
- if there are no parents, or none are readily available, any of the person’s siblings;
- if there are no siblings, or none are readily available, any of the person’s next of kin;
- if there are no next of kin, or none are readily available, the person lawfully in possession of the body, other than the administrative head of the hospital, where the person dies in a hospital. Further, the coroner, Public Guardian and Trustee, embalmer or funeral director are not authorized to consent.
Consent cannot be given if the person has reason to believe that the person who died or whose death is imminent would have objected.
Organ donation has helped so many. Please consider opting in to Ontario’s organ donation program.
Have a great weekend.
We have previously blogged on the various ways that an estate trustee may be removed and/or replaced. Examples include scenarios where an estate trustee dies in the midst of administering an estate, or renounces from his or her position, or where an estate trustee is removed by court order.
Ontario legislation provides guidance for beneficiaries and estate trustees in the aforesaid circumstances. Ontario legislation does not, however, specifically address what to do if an estate trustee is deemed mentally incapable to administer an estate, either before or after probate is granted. For more information on what mental incapacity is, and how to address mental incapacity, click here.
If an estate trustee is deemed mentally incapable, the first question to consider is how far along they were in the administration of the estate.
If the estate trustee has not yet applied for a certificate of appointment of estate trustee with a will (hereinafter referred to as the certificate of appointment of estate trustee), then another person may apply for a certificate of appointment of estate trustee in their place. A person acting under a valid continuing power of attorney for property for the mentally incapable estate trustee may renounce and consent (as appropriate) for the estate trustee. If the incapable individual has not appointed an attorney for property, then their statutory or court appointed guardian assumes this responsibility. Where the will names an alternate estate trustee in the event the estate trustee is unable to act, the alternate should be contacted to discuss whether they are willing and able to assume this role.
In circumstances where an estate trustee has been declared mentally incapable of administering an estate after the certificate of appointment of estate trustee has been issued, any person appearing to have a financial interest in the estate may bring a notice of application for the removal and replacement of the estate trustee. Again, the incapable estate trustee’s power of attorney or statutory or court appointed guardian would likely be involved in this process. Once a court order for removal and replacement is obtained, the replacement estate trustee may apply for a Court Status Certificate of Appointment of Estate Trustee with a Will pursuant to Rule 74 of the Rules of Civil Procedure.
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Rule 2.1 of the Ontario Rules of Civil Procedure is a powerful provision that allows a court to stay or a dismiss a proceeding if the proceeding “appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”.
In Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 (CanLLI), Justice Myers gave direction with respect to what should be contained in the request for a stay. The court suggested that a one or two line letter making the request for the referral of the matter to a judge is all that is required. No narrative or background facts or information should be provided. This is because:
- The abusive nature of the proceedings should be apparent on the face of the pleading itself;
- No evidence is admissible on the motion;
- Submissions of the requestor (defendant) are of little use;
- There will be less likelihood for the plaintiff to “see conspiracies”. The process will be more efficient and fairer in fact and in appearance.
If the defendant wishes to put in evidence or background information, then the preferred procedure might be to move for summary judgment under Rule 20, or to strike out a pleading under Rule 25.11.
However, in The Estate of Lois Jean Davey v. Craig, 2018 ONSC 7367 (CanLII), the Rule was applied to an application where a claim of constructive trust was brought by the Estate Trustee against the Estate Trustee and his former spouse related to an addition paid for by the Deceased. (The Estate Trustee, who was the Deceased’s son, and the former spouse were involved in family law litigation.) The Deceased’s will was filed as part of the application record. The will specifically provided that the addition shall be the sole property of the son, and that “the estate shall have no claim on said addition”. The court also appeared to rely on submissions suggesting that the issue was previously raised by the son, unsuccessfully, in the family law proceedings. The court found that the estate was estopped from making the claim in light of the express wording of the will. Further, the court held that the claim had no basis in fact or law. “One cannot give the gift, make clear evidence of that gift, and then recover the property using the law of unjust enrichment.” The application was dismissed with costs.
The decision demonstrates the powerful nature of the Rule. The application was dismissed with no formal motion being brought by the respondent, no apparent reply materials, no cross-examinations and no attendance by the parties.
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Many of our readers will be aware that on an application for dependant’s support under Part V of Ontario’s Succession Law Reform Act, certain property that may not be considered an asset of the deceased’s estate can be “clawed back” into the estate for the purposes of considering and funding an award of dependant’s support. Subsection 72(1)(d) provides that “a disposition of property made by a deceased whereby property is held at the date of his or her death by the deceased and another as joint tenants” shall be deemed to be part of the estate.
Whether jointly-held property is caught by s.72(1)(d) depends on whether there was a “disposition” into that joint tenancy. When a property is initially purchased by a deceased person and another in joint tenancy and remains as such at the time of death, it can not be said that there was a disposition into joint tenancy: s. 72(1)(d) would not appear to apply.
However, when the ownership arrangement of a property is more intricate, whether or not jointly-held property will be deemed to be an asset of the estate within the context of a dependant’s support application becomes less clear.
Consider the following scenario:
- At first instance, title to a property is taken as follows:
- 50% held solely by A; and
- 50% held jointly by A and B, who are common law spouses.
- Years later, A conveys the 50% held by her alone to herself and her common law spouse jointly.
- Therefore, immediately preceding A’s death, 100% of the property is held in joint tenancy by A and B.
Now, after A’s death, A’s minor children assert a dependant’s support claim. Does section 72(1)(d) apply, such that the property can be made available to fund a payment of dependant’s support?
The decision in Modopoulos v Breen Estate,  O.J. No. 2738 interpreted section 72(1)(d) of the Succession Law Reform Act to mean that, only if the property was owned solely by the deceased and later transferred into joint tenancy prior to death, would there be a “disposition” into joint tenancy.
In the unique set of circumstances described above, it could be argued that A never solely owned the property and, therefore, the later disposition is not captured by section 72(1)(d). However, another perspective is that the 50% interest held initially by A as a tenant in common (with A and B jointly as to the other 50%) would have formed part of her estate if the subsequent disposition to B as a joint tenant did not take place. This interpretation strongly supports that section 72(1)(d) of the Succession Law Reform Act would in fact apply to make the 50% interest in the property available in satisfaction of a dependant’s support claim. Certainly such an argument is consistent with the remedial intent of the legislation.
To our knowledge, there has yet to be a decision in Ontario that addresses whether section 72 would apply to a disposition out of a tenancy in common and into a joint tenancy, such as that featured in our hypothetical example. It will be interesting to see how a court would interpret similar transactions if encountered in the future.
Thank you for reading.
Other blog entries that you may enjoy reading:
- SLRA Dependant Awarded Entirety of Estate
- Priority of Claims for Dependant’s Support Over Other Claims Against an Estate
- The Risks of Joint Tenancy
- Joint Accounts Between Spouses
Earlier this year, we argued the appeal in Moore v Sweet before the Supreme Court of Canada. On Friday, the Court released its decision, which has provided what, in our view, was necessary clarification of the juristic reason component of the test for unjust enrichment. The Supreme Court has also confirmed the circumstances in which a constructive trust remedy is appropriate within the context of unjust enrichment. Our firm was pleased to argue the appeal at the Supreme Court in February 2018 and to learn on Friday of our client’s success in the reversal of the split decision of the Ontario Court of Appeal.
The facts of the case were relatively straightforward: The appellant had previously been married to the deceased. Around the time of their separation, the appellant and the deceased entered into an oral agreement whereby the appellant would remain the designated beneficiary for the life insurance policy on the deceased’s life on the basis that she would continue to pay the related premiums. The appellant paid the premiums on the life insurance policy until the deceased’s death approximately 13 years later, while, unbeknownst to the appellant, the deceased named his new common law spouse (the respondent), as irrevocable beneficiary of the policy soon after the oral agreement was made. At the time of his death, the deceased’s estate was insolvent.
At the application hearing, Justice Wilton-Siegel awarded the appellant the proceeds of the life insurance policy on the basis of unjust enrichment. The respondent was successful in arguing before the Ontario Court of Appeal that the designation of an irrevocable beneficiary under the Insurance Act was a “juristic reason” that permitted what was otherwise considered the unjust enrichment of the respondent at the appellant’s expense. The appellant was subsequently granted leave to appeal to the Supreme Court of Canada.
Justice Coté, writing for the Majority, agreed that the test for unjust enrichment was flexible and permits courts to use it in the promotion of justice and fairness where required by good conscience. The Court clarified that the juristic reason permitting an unjust enrichment needs to justify not only the enrichment of one party but also the corresponding deprivation of the other party. While the irrevocable beneficiary designation may have required the payment of proceeds for the policy to the respondent, it could not be considered as also requiring the appellant’s deprivation of the proceeds to which she was entitled under the oral agreement. The Court found that a designation of an irrevocable beneficiary under the Insurance Act precludes claims by creditors of an estate, but it does not state “with irresistible clearness” that it also precludes a claim in unjust enrichment by a party who has a contractual or equitable interest in the proceeds.
While reaching the opposite result, the dissent acknowledged that this was a difficult appeal, in which both parties were innocent and had strong moral claims to the proceeds of the life insurance policy.
We thoroughly enjoyed the opportunity to argue this case before the Supreme Court of Canada earlier this year and look forward to following the role of this decision in further developments in the Canadian law of unjust enrichment.
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Hull and Hull LLP is proud to, once again, act as co-host to a fundraiser in support of the Toronto Feed the Hungry Program.
The event is to be held at The Rivoli, 334 Queen Street West, 2nd floor, Toronto, on Thursday October 18, 2018 commencing at 6:30 pm.
The Toronto Lawyers Feed the Hungry Program is now in its 20th year. The Program serves up to 3,500 meals per week to Toronto’s needy out of the Osgoode Hall cafeteria. Meals are served 4 times a week.
The cost of running this wonderful program is $350,000 a year. Public support is needed.
Please join us on Thursday October 18, 2018 for a fun evening of billiards, comradery, and to raise funds for this wonderful program.
If you are not able to attend, please consider supporting this program through a donation.
For further information on the event or to make a donation, click here.
For more information on the Toronto Lawyers Feed the Hungry Program, click here.
Have a great weekend.
In order for a gift to be valid, there must be delivery. The issue of the timing of the delivery of a gift was explored in the recent Quebec decision of Estate of Tilden, 2018 QCCS 2971 (CanLII).
There, the Liquidator (a role similar to that of an estate trustee) of the Estate of Robert Tilden claimed that a gift made by the deceased was not perfected by delivery prior to the death of the deceased, and therefore lapsed, and must be returned to the estate.
The facts of the case are quite bizarre. The deceased was involved in a family law proceeding. He did not attend at a family law mediation. A legal assistant called the respondent, the deceased’s cousin and best friend, to ask about the deceased’s whereabouts. Late on September 17, 2015, the respondent drove to the deceased’s cottage to look for him. The deceased was not there. The cottage was clean and nothing appeared out of the ordinary. The respondent returned home, stopping to pick up his mail on the way. In his mail, he found a letter from the deceased. The letter indicated that the deceased had left two boxes for the respondent in the basement of the deceased’s cottage. The respondent returned to the cottage, and in the boxes he found hashish and over $600,000 in cash.
While the respondent was at the cottage, a neighbour arrived, also looking for the deceased. The respondent said that the deceased was not there, and the neighbour left. The respondent then put the cash in his car and left.
The next day, the respondent found a letter with the cash. In the letter, the deceased said that some of the cash was to be delivered to another friend, and that the rest was for the respondent.
That same day, another relative received a letter containing a cheque in the amount of approximately $230,000. The relative was concerned about the deceased, and phoned the police. The police attended at the cottage and found the deceased dead in a sleeping area above the garage. They also found letters in the kitchen setting out how the deceased wanted his estate divided. The respondent gave evidence that he did not notice these letters on both occasions when he was at the cottage.
The cause of death was determined to be suicide, and the date of death was determined to be September 17, 2015: the same day that the respondent picked up the cash.
The respondent asked the court to conclude that the deceased died AFTER the cash was picked up, and therefore there was a valid gift of the cash. He argued that the court should presume that the deceased waited until the respondent left the cottage with the box of money before taking his life.
The court refused to make such a finding. The court held that such a presumption was too much of a stretch, based on the facts as known. The court’s reasoning included consideration of the following:
- It is not “clear and obvious” that the deceased planned to wait for the respondent to take the box of money before committing suicide;
- The deceased would have had no way of knowing that the respondent would go to his cottage immediately upon receiving the letter, to pick up the gift;
- In the deceased’s “letter of wishes” left the cottage to the respondent. Therefore, the deceased could have expected the respondent to search the cottage after he had died;
- A presumption that the deceased waited for the respondent to pick up the gift before he committed suicide presumed that the deceased knew that the gift had to be completed between two living persons. If the deceased knew this, he wouldn’t have hid from the respondent, but would have given him the cash;
- If the deceased was hiding from the respondent when he first attended at the cottage, he wouldn’t have seen that the respondent left without the box of money, and wouldn’t have known that the respondent would return shortly thereafter;
- It did not make sense that the deceased waited for “delivery” of the gift to the respondent, but not to the other friend who was to receive part of the cash;
- The deceased left other property to the respondent in his valid will. The court queried why the deceased would do this with other property, but not with the cash.
The court concluded that the gift of the money was likely meant to be found after the deceased died, but was to be treated as a “secret”. However, in the circumstances, the gift failed. The respondent was ordered to repay the gift of cash made to him. However, as some consolation, no costs were awarded against the respondent.
For another discussion of a case involving an incomplete gift, see our blog, here.
Thanks for reading. Have a great weekend.
In Foisey v. Green, 2017 ONSC 7140, the estate trustee of the estate was required to pass her accounts as estate trustee, even though the beneficiary signed a full and final release.
There, the deceased died intestate, and was survived by two sisters. One sister, Joyce, was appointed as estate trustee. She distributed what she said was half of the estate to her sister, Darlene, who signed a release as against the estate and the estate trustee.
Darlene was later found incapable of managing her property, and the Public Guardian and Trustee was appointed as her statutory guardian. They looked into the estate, and had concerns about whether Darlene received her full entitlement from the estate. The estate was said to have a gross value of $830,000, but Darlene only received $291,000. The PGT sought an accounting from Joyce. Joyce resisted, relying on the release signed by Darlene.
The court held that Joyce had to pass her accounts, notwithstanding the release. The court referred to the presumption of capacity in the Substitute Decisions Act, and the fact that a person is entitled to rely on the presumption of capacity unless the person has reasonable grounds to believe that the other person is incapable. However, the court noted s. 2(4) of the SDA, which provides that where a contract was entered into within one year of the creation of a guardianship, “the onus of proof that the other person who entered into the contract …did not have reasonable grounds to believe the person incapable is on that other person.”
In the Foisey case, the court found that there were “red flags” that precluded the court from finding that Joyce satisfied the court that she did not have reasonable grounds to believe that Darlene was incapable. These included:
- Darlene was living in an assisted living facility; and
- Darlene was participating in a trusteeship program.
To Joyce’s credit, however, her lawyer met with Darlene, in the presence of Darlene’s apparent lawyer, a childhood friend, and the administrator of the facility of the lodge where Darlene resided. Apparently no one objected to Darlene signing the release, or advised that Darlene did not have capacity.
In ordering the passing of accounts, the judge noted Joyce’s evidence that after the signing of the release, she did not keep any of the estate accounting.
One takeaway is to take steps to ensure that beneficiaries are capable of signing a release if there is anything to suggest that capacity may be in issue. A second takeaway, as noted by the judge, is to always keep records. “Although unfortunate, this case underscores the importance of keeping adequate records notwithstanding the execution of an estate release.”
As a postscript, an appeal to the Court of Appeal was dismissed, as the Court of Appeal determined that because the order directing the passing of accounts was interlocutory, the appeal would lie to the Divisional Court, with leave.
Have a great weekend.
A recent report on the healthista.com website discusses ways to avoid or slow the progress of dementia.
First, the bad news: In the UK, one person is diagnosed with dementia every three minutes. One in twenty people develop dementia under 65, and after turning 65, a person’s risk of developing dementia doubles every five years.
Now the good news: there are various things that we can do to reduce the risk of developing dementia. These include:
- Stimulate your brain. This means doing more than “brain training”. Social interaction is seen as the key. Also, taking up new hobbies, interests and intellectual challenges is more beneficial than doing the things that you have always done.
- Develop a “cognitive reserve”. A high cognitive reserve, based on higher education, a complex lifetime occupation and high levels of social engagement helps maintain brain health. Lawyers, social workers, teachers and doctors were better protected from Alzheimer’s than shelf-stackers, machine operators and labourers.
- Take Aspirin. Long term use of aspirin is associated with a reduced risk of Alzheimer’s. Low doses of aspirin, traditionally associated with heart health, was found to lead to better memory and cognitive function.
- Take fish oil. This one is a bit controversial. Some studies have shown that fish oil slows the decline of cognitive function. However, a Cleveland Clinic post has suggested the research is not conclusive on the benefits of fish oil, and suggests that you should simply eat more fish.
- Help your heart, help your brain. The same processes that cause heart attacks and strokes are also associated with the development of dementia. Conversely, the lifestyle factors that help your heart can also help maintain cognitive function.
- Drink, eat and exercise. Drink champagne: one to three glasses a week. The phenolic compounds found in the grapes used to make champagne have the ability to increase spatial memory, improve cognitive function and promote learning and memory retention. Further, regular moderate exercise can prevent the onset of dementia. Even better is engaging in a sport, as this adds a social element, as well. Finally, a healthy diet, such as the Mediterranean diet, has been found by a number of studies to slow cognitive decline and lower the risk of developing Alzheimer’s.
More good news: in the next ten years, it is expected that research will reveal more specific actions that can help prevent Alzheimer’s and dementia.
Have a great weekend.