Author: Ian Hull
For a will in Ontario to be valid, it must meet the statutory requirements for due execution as outlined in section 4(1) of the Succession Law Reform Act (the “SLRA”). In some cases, however, determining whether these requirements have been met is not always clear-cut. Bayford v. Boese, 2019 ONSC 5663 provides such an example.
In this case, the testator, Bruce Boese (“Bruce”), died in June of 2015. Bruce was the sole owner of a farm he inherited from his parents. He never married and did not have any children. For the past two decades prior to Bruce’s death, his friend, Brenda Bayford (“Brenda”), assisted him with the operation of the farm.
Throughout his lifetime, Bruce executed two wills: one in 1992 and another in 2013. Under the 1992 will, Bruce named his parents as his sole beneficiaries. However, since both of Bruce’s parents had pre-deceased him, his estate would pass on an intestacy to his siblings, with Brian and Rhonda each inheriting 50%. Under the 2013 will, the farm property was to be transferred to Brenda, with the residue being equally divided amongst four children of Bruce’s two siblings. Interestingly, the 2013 will had the word “DRAFT” stamped on every page. Also, there were two versions of the 2013 will: “Version 1” and “Version 2”. Version 1 contained Bruce’s signature but did not contain the signatures of any witnesses. Version 2 contained Bruce’s signatures and the signature of two witnesses, Sophie Gordon (“Sophie”) and Colleen Desarmia (“Colleen”).
After Bruce’s death, Brenda found Version 1 of the will. She brought it to the office of Bruce’s lawyer as she thought that the fully executed version of the will would be there. It was not. Shortly after, Colleen informed Brenda of the existence of Version 2. Upon hearing this, Brenda did a further search and found Version 2.
Brian asserted that the 2013 will did not comply with section 4(1) of the SLRA. His theory was that upon finding Version 1 of the will, Brenda colluded with the two witnesses to procure the 2013 will. In the alternative, Brian asserted that Bruce’s signature was forged on the 2013 will which the two witnesses signed.
Although Brian called an expert to give evidence with respect to Bruce’s signature on the wills, Justice Corthorn did not find the expert’s evidence to be helpful to Brian, nor did she find that it made the two witnesses less credible.
At trial, there were discrepancies between the evidence of the two witnesses with respect to the specific mechanics of Bruce signing the will and the witnessing of his signature. For example, Colleen testified that she believed that both she and Sophie remained standing while Bruce was seated at the kitchen table when he signed the 2013 Will. Sophie’s evidence was that she believed she was the only person standing and that both Bruce and Colleen were seated. Justice Corthorn noted, however, that “these inconsistencies [were] in keeping with the frailty of human memory, including […] the passage of time” and that they did not give her a reason to be concerned with the credibility of either witness.
Furthermore, based on the witnesses’ respective education and work experience, Justice Corthorn drew an inference that each of them had sufficient experience in completing paperwork to know that a witness to a document signs after the document is signed by the principal signatory.
Taking this into consideration, Justice Corthorn concluded that Bruce’s 2013 will was executed in accordance with s. 4(1) of the SLRA and that it was therefore valid.
While Bayford v Boese provides many noteworthy take-aways, perhaps the main one is the importance of ensuring that a will is properly executed, and that it is stored in a safe and easily accessible place that the testator’s lawyer and estate trustee(s) are aware of. Had this happened, the case could have been avoided altogether.
Thanks for reading!
Ian Hull and Celine Dookie
Once a donor has agreed to donate funds to a charitable institution, are they entitled to have any input as to how those funds are spent? Does that donor have any recourse if their funds are not being spent the way they envisioned? Faas v. CAMH, 2018 ONSC 3386, 2019 ONCA 192 provides some insight regarding these questions.
At the direction of its principal, Andrew Faas, the Faas Foundation agreed to donate $1 million to the Centre for Addiction and Mental Health and its fundraising arm (collectively “CAMH”). The funds were to establish a mental health program entitled “Well@Work”. Accordingly, Mr. Faas’ payments were to be made in installments of $333,000 each year for the next three years.
Mr. Faas signed a Donor Investment Agreement (the “DIA”) which outlined a proposal for the program. The DIA also provided that an annual status report was to be provided to Mr. Faas. Nearly one year into the development of the program, Mr. Faas informed CAMH that he was not satisfied with the program’s progress, the extent of reporting or the expenditure of the donation. The parties reached an impasse with regards to these matters and Mr. Faas refrained from making the remaining two payments. He also requested that CAMH forward any money not spent on the first installment to another Canadian agency. However, all of the money for the first year had already been spent by CAMH on the development of the program.
In response, Mr. Faas commenced an application based on section 6 of the Charities Accounting Act which provides:
(1) Any person may complain as to the manner in which a person or organization has solicited or procured funds by way of contribution or gift from the public for any purpose, or as to the manner in which any such funds have been dealt with or disposed of.
. . .
(3) Wherever the judge is of opinion that the public interest can be served by an investigation of the matter complained of, he or she may make an order directing the Public Guardian and Trustee to make such investigation as the Public Guardian and Trustee considers proper in the circumstances.
The Ontario Superior Court of Justice found that there were no grounds on which to order the Public Guardian and Trustee (the “PGT”) to conduct an investigation because there was no identifiable public interest. Furthermore, no mischief was identified and nothing in the records indicated that CAMH had mismanaged the funds.
Justice Morgan stated that inquiries under the Charities Accounting Act should not be initiated lightly and that they should not “simply be for the sake of meddling.” They must only be invoked when real mischief to the public at large exists.
Mr. Faas’ complaint was not that CAMH had failed to use the donation for their own charitable objectives but that they did not use their donation in a manner that conformed to Mr. Faas’ personal vision. This did not go against public interest, but rather a private one.
The Ontario Court of Appeal agreed with the decision of the Ontario Superior Court of Justice and dismissed the appeal.
Faas v. CAMH emphasizes that while an unsatisfied donor does have a potential recourse of asking the PGT to conduct an investigation under the Charities Accounting Act as to how their funds were spent, an investigation will not be initiated without some evidence of mismanagement. As such, once a donor has agreed to make a donation, and as long as the charitable organization is not mismanaging the funds, the donor cannot retract their donation simply because the organization is not strictly adhering to the donor’s vision.
Thanks for reading!
Ian Hull and Celine Dookie
To most, it may seem obvious that an order from the court is not merely a recommendation. The terms of a court order must be followed. Disobeying the terms of an order may result in a finding that a litigant is in contempt. This was a lesson the defendant in Jensen v. Jensen had to learn the hard way.
In Jensen v. Jensen, Sterling Jensen was married to Betty Jensen. It was a second marriage for both of them and they both had children from prior marriages. Sterling passed away in 2014. Prior to his passing, Sterling appointed his son, Randall, as his Attorney for financial and personal care decisions and his other son, Murchie, as his Executor. Following Sterling’s death, Betty commenced an action against Sterling’s estate and his sons, claiming various forms of relief, including ownership of the matrimonial home.
Betty passed away and the trial was adjourned following her death. Betty’s heirs obtained an order to continue the action on behalf of her estate. A motion requesting an order to continue was heard on November 23, 2017. Following the hearing, Justice Petrie issued an order which provided the following, among other terms:
Until judgement is rendered in this action no further assets of the Defendant Estate shall be transferred or disposed of except as necessary to pay the property taxes and other such expenses or as required by law or further order from this Court.
Despite Justice Petrie’s order, in February 2018, Murchie wrote cheques to the beneficiaries of Sterling’s estate amounting to $7,000. In May 2018, land was transferred from Sterling’s estate to one of Sterling’s other sons who was also a beneficiary in the estate. In July 2019, the plaintiffs filed a motion seeking an order to declare the defendant in contempt of court due to his disobedience in following Justice Petrie’s order. The plaintiffs also wanted the defendant to pay back to the estate the amounts that he hastily distributed.
The defendant stated that although Justice Petrie’s order was not respected, he did not believe that he was violating the “spirit of the order”.
In her Judgment, Justice DeWare noted that it was clear that the defendant did not follow Justice Petrie’s order and in not doing so, he was in contempt of court. Justice DeWare went on to state that if the executor felt it was necessary to issue partial payments to the beneficiaries, he should have obtained a further court order which allowed him to do so. Justice DeWare emphasized that court orders are not suggestions and that they must be followed. Pursuant to Rule 76.06 of the New Brunswick Rules of Court, Justice DeWare ordered the defendant to return $35,000 to the estate and pay $1,000 in costs to the plaintiffs.
In summary, Jensen v Jensen provides one simple, yet clear, instruction: always follow court orders. The failure to do so can carry a host of potential detriments. Although Jensen v. Jensen is a New Brunswick case, it can be applied in Ontario as per Rule 60.11(5) of the Rules of Civil Procedure. It states that if the court finds a party in contempt, the judge may order that the litigant be imprisoned, pay a fine, refrain from doing an act, pay costs or comply with any other order that the judge considers necessary. As this provision is similar to the provision in New Brunswick’s Rules of Court, it is likely that had the case been heard in Ontario, the outcome would have been comparable.
Thanks for reading!
Ian Hull and Celine Dookie
Recently, Stuart Clark blogged about the film Knives Out and its relation to estate law. Another popular movie, Murder Mystery, which aired on Netflix last year, also offered some thoughtful considerations for those interested in estate law. The film, starring Adam Sandler and Jennifer Aniston, was the most popular title on Netflix in 2019. In its first three days on the streaming service, it was viewed by 30,869,863 accounts.
Just as Stuart gave a spoiler alert in his blog, this blog also contains spoilers.
In Murder Mystery, Nick Spitz and his wife, Audrey Spitz, embark on a trip to Europe. On the plane, Audrey meets billionaire Charles Cavendish, who invites them to join him on his family’s yacht for a party to celebrate Malcolm Quince’s (Charles’ elderly billionaire uncle’s) upcoming wedding to Charles’ former fiancée. While on the yacht, Malcolm announces that he will be changing his will to leave everything to his soon-to-be wife. After this surprise announcement, the lights suddenly go out, a scream is heard, and when the lights come back on, the guests are surprised to see that Malcolm has been killed. Nick and Audrey are framed for Malcolm’s death. To prove their innocence, they must find Malcolm’s real killer.
Throughout the movie, French inheritance law is heavily emphasized. As summarized by Nick in the film: “The French law states that a man’s estate must be divided equally amongst his children.” This type of estate plan is referred to as a “forced heirship.” France’s succession law is based on the Napoleonic Code introduced in the 1800s. Under France’s succession law, children are reserved a certain portion of their parents’ estate. If a parent has one child, at least one-half of the estate must be reserved for them. If a parent has two children, at least two-thirds of the estate must be reserved for them and if a parent has three or more children, at least three-quarters of the estate must be reserved for them.
Those who have watched the film may find themselves wondering if the succession laws in Ontario are similar to that of France. Unlike French inheritance law, in Ontario, a testator does not have an obligation to leave a share of their estate to an adult, independent child. Under subsection 58(1) of the Succession Law Reform Act (the “SLRA”), a testator is only under an obligation to provide support for their “dependants”.
According to subsection 57(1) of the SLRA, a “dependant” includes the deceased’s spouse, parent, child, brother or sister “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” Therefore, if a testator was not under a legal obligation to provide for an adult child, that child may not have an entitlement to share in their parent’s estate.
Just something to think about the next time you watch the film.
Thanks for reading!
Ian Hull and Celine Dookie
Estate planning lawyers have both the privilege and the responsibility of providing guidance and advice to clients while they are at key stages in their lives. A good lawyer’s role involves turning a client’s mind to the future and planning for turbulent times before they arise. As one grows old and the risk of serious illness increases, it is important to consider difficult medical decisions that will need to be made, and the impact those decisions might have on your loved ones. Lawyers can help in this preparation, for example with naming a substitute decision-maker who can help direct doctors when the patient becomes incapable, as well as by drafting advanced care directives that lay out the wishes of the patient regarding treatment of serious illness and the extent that life-prolonging measures should be used. While such “advanced care directives” have no legal standing in Ontario, they are still important in that they can provide crucial guidance to decision-makers and medical practitioners when drafted correctly. On the other hand, they could be confusing to decision-makers and hinder medical professionals when drafted in an inflexible manner.
The Lawyer’s Role
Firstly, the language of these directives should be directed to the patient’s decision-maker, and not to the medical practitioner. They should be drafted as advice and guidance to the decision-maker, and not as rigid rules that a medical professional might feel obligated (but not legally compelled) to follow. This is crucial as any lawyer drafting such a document should appreciate the “shared decision-making” model between patient and doctor. Important medical decisions are not made in a vacuum and the availability of different treatment options as well as the weight of their risks and benefits can vary with changing circumstances. It is difficult for a rigid legal document to accommodate the nuances of such a complex situation, but one that supports and guides a decision-maker in their conversations with medical professionals can be extremely valuable. With skilful drafting, the two-way decision-making process between doctor and substitute decision-maker can be facilitated, instead of hindered.
The drafting of advanced care directives should be centered around the values and preferences of the patient as opposed to specific treatment options. The American Bar Association advises that there should not be a focus on specific clinical intervention for “distant hypothetical situation” but rather on the patient’s “values, goals, and priorities in the event of worsening health”.
Finally, the planning process for important medical decisions regarding serious illness requires input from both doctors and lawyers to ensure treatment directions can be drafted with the nuance required for complex medical situations. The ABA suggests that “lawyers and health professionals should aim for greater coordination of advance care planning efforts”, and such collaboration will help clients and decision-makers be as prepared as possible to make informed decisions.
The Client’s Role
When it comes to what clients can do, while preparing a legal document is an important step, it should be reinforced by candid conversations with decision-makers, family, and friends. This significantly eases the burden on decision-makers, as they can carry out their role in stressful situations with the peace of mind that they are not second-guessing their loved one’s wishes when it comes to treatment.
Another way clients and their decision-makers can prepare for the future is by consulting resources that facilitate the planning process. An example of such a resource is planwellguide.com, which provides guidance on important issues from choosing a substitute decision-maker, to elaborating on the pros and cons of different care options, to specific factors to consider when making an advanced care plan.
A Gift of Great Value
While the lawyer’s skill in drafting is important to making an effective plan, a lawyer’s role can extend past legal documents and into transmitting a forward-thinking approach to clients. This approach requires careful consideration and reflection on the part of the client regarding their values and priorities when faced with serious illness, as well as having frank conversations with loved ones. While having these types of conversations may not be the most merry activity over the holiday period, giving a loved one that peace of mind is a gift of immeasurable value.
Thank you for reading!
Ian Hull and Sean Hess
A frivolous will challenge can be frustrating for any respondent. It is not only time consuming but costly as well. A motion for security for costs is an option a respondent facing a frivolous will challenge can pursue in hopes of putting an end to it. While these motions may not be used as frequently in the estate litigation context as they are used in general civil litigation, they are nonetheless valuable.
An order for security for costs requires an applicant to pay a sum of money into court that will cover the respondent’s legal costs, should they be successful in the action or application. It helps to ensure that a successful respondent is not left with an unenforceable costs order. In doing so, it acts as a deterrent to frivolous proceedings.
Rule 56.01(1) of the Rules of Civil Procedure lists several categories in which a respondent may bring a motion for security for costs. These categories include the applicant not ordinarily residing in Ontario, a frivolous or vexatious action or application or if good reason exists to believe that the applicant has insufficient assets in Ontario.
Once the respondent has shown that the action or application fits into one of the categories listed in rule 56.0(1), the applicant then has the opportunity to prove that ordering security for costs would be unjust because the applicant is impecunious and the claim has merit.
It is imperative that the motion is made without undue delay. However, if the motion involves assessing the action’s merits, Park Street Plaza Ltd. v. Standard Optical Inc. and Shuter v. Toronto Dominion Bank suggests that it should not be made until after examinations for discovery are completed.
In the context of estate litigation, Re Bisyk notes that security for costs will rarely be awarded in a will challenge case where the next of kin have been excluded from the will. This is because the estate trustee has an obligation to propound the will. However, where the next of kin acts on their own and without the support of their family members or against family members, the will challenge may be viewed as “frivolous”, thus providing the possibility for security for costs to be awarded (Boutzios Estate, Re).
Overall, a motion for security for costs is a powerful tool an estate litigator can employ. Forcing an applicant to pay money into court will make them think twice about proceeding with a frivolous will challenge. It may even stop the lawsuit all together, saving both sides costs, time and resources.
Thanks for reading!
Ian M. Hull and Celine Dookie
To learn more about motions for security for costs, check out these podcasts:
One of the ways a Will can be declared invalid is if the court finds that there were suspicious circumstances surrounding the preparation of it. In Graham v. Graham, the Ontario Superior Court of Justice found that significant involvement from the testator/grantor’s child was indicative of suspicious circumstances regarding the preparation of a Will and Power of Attorney (POA).
The testator, Jackie, had four children: Tim, Robert, Christine and Steven.
Jackie suffered from terminal cancer. She was hospitalized from November 22, 2015 to December 7, 2015, and again from December 22, 2015 to December 24, 2015, to receive treatment for severe pain.
In mid-December 2015, Robert’s wife, Tammy, searched for and contacted a lawyer to prepare a Will and POA for Jackie. Tammy obtained a Client Information Sheet (CIS) from the lawyer’s office and completed it herself. The lawyer prepared the documents based on this CIS. At Robert’s request, the lawyer went to the hospital to meet Jackie and have her sign the Will and POA. This was the first time Jackie met the lawyer and saw the Will and POA.
Jackie’s Will named Robert as estate trustee and sole beneficiary of her estate. The POA named Robert as Jackie’s sole attorney for property. Robert’s wife, Tammy, was named as the alternate estate trustee and attorney.
On January 4, 2018, Robert used the POA to transfer Jackie’s house to himself as sole owner. Four days later, Jackie died of cancer.
Tim challenged the validity of Jackie’s Will and POA claiming that they were prepared under suspicious circumstances and that Jackie was subject to undue influence by Robert and Tammy.
- Jackie had been in ill health for a long time prior to her death, so it was reasonable to infer she had chosen to die without a will, until Robert’s involvement.
- Jackie was treated with heavy painkillers on the night and morning of the day she signed the will and POA.
- Robert and Tammy “orchestrated virtually every aspect of the Will and the POA”, which included searching for a lawyer, providing instructions, arranging for the lawyer to meet Jackie, remaining in Jackie’s room for part of the meeting, and taking part in the discussions concerning the Will and POA.
- The drafting lawyer relied entirely on Robert and Tammy to provide him with all of the information concerning the Will and POA.
After finding that suspicious circumstances existed, the burden then shifted to Robert to prove that Jackie had testamentary capacity and that she knew and approved of the contents of the Will and POA. Using the test for testamentary capacity as outlined in Banks v. Goodfellow (1870), the court found that Robert could not establish that Jackie had testamentary capacity. In coming to this conclusion, the court considered the following:
- There was no evidence that Jackie was given the Will or the POA to read or that it was read to her.
- Although Jackie knew where she was living, there was no evidence to indicate that she had any knowledge or understanding of the monetary value of her house.
- It was unclear whether Jackie could do more than repeat what she was told.
- Jackie was confused and/or mistaken in certain beliefs about her son, Tim.
- The medications that Jackie was taking for her pain left her confused and drowsy.
As a result, the Will and the POA were declared invalid.
Graham v. Graham serves as a cautionary tale for adult children who become too involved in the drafting of their parents Wills and POAs. It warns us that the courts view this type of involvement as suspicious. Moreover, Graham v. Graham suggests that physical impairment can impact a testator’s mental state, thus making them vulnerable.
Thanks for reading!
Ian Hull and Celine Dookie
Last month, in the case of McKitty v Hayani, 2019 ONCA 805, the Ontario Court of Appeal had to consider a challenge to the medical and common law definition of death on the grounds of freedom of religion. The Court also considered whether someone’s religious beliefs should be a factor when deciding whether they are legally deceased. In the end, the Court unanimously declined to rule on whether religious beliefs should be taken into account, but there were some key takeaways from the decision, and a framework was made that invites future challenges. This issue could have an important application in estates law, as it examines the standard for when someone is considered legally deceased.
Taquisha McKitty was declared dead in September 2017 following a drug overdose. The medical staff attending to her declared her dead due to “neurological criteria”; however her relatives were granted an injunction to keep her on life support, arguing their Christian faith only considers someone deceased upon cessation of cardiovascular, instead of neurological, activity. They made the argument that according to the freedom of religion in section 2 of the Canadian Charter of Rights and Freedoms, they have the right to have their religious views taken into account when it comes to determination of death and removal of life support. The point is now somewhat moot because McKitty has since died from both neurological and cardiovascular criteria; however important groundwork was laid for a potential future challenge.
The Court of Appeal unanimously concluded that it did not have enough information to rule on the matter. To be able to appropriately rule on the Charter issues, the Court held it would need more evidence on the duties and legal obligations of doctors, McKitty’s religious beliefs, and the religious beliefs of her community. The Court did accept the common law definition of death as being cessation of neurological activity, but left this definition open to future challenges based on freedom of religion. While not providing a definitive answer, the Court did craft a legal framework for how this issue should be addressed in future. This framework includes acknowledging that death is not just a medical determination but also an “evaluative” legal concept. The Court also ruled that the Charter still applied to McKitty as a legal “person” even though she was clinically dead, and a lack of neurological activity does not remove her right to challenge the criteria used to declare her death. With this framework in place, it remains very possible that we might see a further challenge within this framework in the near future.
In this case, the current definition of death as cessation of neurological activity was confirmed, but it remains very possible that this could be challenged on freedom of religion grounds. This has very interesting implications for estates law. For example, in families of mixed faiths, some members of the family might consider a relative to be deceased, while other members might consider them to be alive. This would cause a tricky situation when it comes to dividing up the estate. Watch this space!
Thanks for reading,
Ian Hull and Sean Hess
For those who are about to enter, or are in the very midst of, a long and arduous legal dispute, beware the ineffaceable nature of social media activity. The sands of time might erode Rome and the Pyramids, but they will bounce off the public record of your impassioned posts and hyperbolic tweets. Keeping in mind that such evidence lasts forever, and is also readily accessible, devoid of context, and cheap to procure, litigants may be wise to keep their online communication to a minimum – lest they spoon-feed their opponents material that could later prove hamstringing and self-defeating.
In recent years there have been stories about criminals sharing their crimes with the world via Facebook Live. In family law, we have seen a support claimant attain more support by citing a payor’s lavish life on Instagram, and a father’s custody compromised by his errant Youtube video. In estates law, where there is often mystery and ambiguity involved with testamentary intention, and much of the evidence is “he-said-she-said” – in other words, uncorroborated parole evidence tainted by self-interest – parties scramble for whatever concrete material they can find, such as a screenshot of a social media tirade.
In one recent Ontario decision (Lyons v. Todd,  O.N.S.C. 2269), a man not only dragged out litigation against his sister, who was the estate trustee, but engaged in a campaign of harassment, menaces, and defamation – all of which the court was able to scrutinize with ease:
“The transcription of voice messages, copies of emails and other social media posts, establish that Bob threatened to make what he described as Victoria’s ‘perverted’ sex life public. He threatened to expose her to the clients of the Park and bankrupt her with the costs of litigation if she did not settle. With some of the Facebook posts, he posted the location of the Park.”
The court did not accept the man’s argument that the posts were unrelated to the proceedings, finding instead that the “gratuitous humiliation and embarrassment” the estate trustee suffered was a further reason for which she should receive the $60,000 in costs that she requested.
In Nova Scotia (Public Safety) v. Lee,  N.S.S.C. 71, a man came under the fire of CyberSCAN and the Director of Public Safety, which are government bodies mandated with the policing, punishment and prevention of cyberbullying. The man was purportedly vexed with his sister, who was the sole beneficiary of the mother’s will. The rambling posts were addressed to “anybody out there in Facebook land” and the “cowards in my family”, but in fact the speech was tantamount to a naked admission before a stern court.
The frustrated litigant or potential litigant who needs to vent would be safer, and likely more satisfied, by confiding his or her troubles to a friend in a private setting rather than airing from a veritable rooftop grievances which will echo for the end of time.
Thank you for reading,
Ian Hull and Devin McMurtry