Author: Ian Hull

02 Oct

A Review Regarding Testamentary Capacity Assessments: Kay v Kay Sr.

Ian Hull Estate & Trust, Estate Litigation, Estate Planning, Trustees, Wills Tags: 0 Comments

In Banks v Goodfellow, the English High Court laid out the benchmark test for assessing testamentary capacity. To this day, it has stood the test of time. Subsequent cases have served to focus and clarify aspects of it. The recent decision of the Ontario Superior Court of Justice in Kay v Kay Sr. is such a case. In Kay v Kay Sr., the court provides a helpful review of the law regarding testamentary capacity, specifically the weight that is to be given to the drafting lawyer’s assessment and a posthumous testamentary capacity assessment.

Facts

The deceased, Annie Wotton, died on August 26, 2019, at the age of 95. Mrs. Wotton created a will in 1992 which essentially left everything to her son, John. It also provided that John, along with her husband, Jack, were to be appointed as joint executors.

Medical assessments conducted in November 2009, September 2010 and October 2010 noted that Mrs. Wotton had a mild to moderate form of dementia. The assessments stated that Mrs. Wotton’s memory was moderately impaired and that her cognitive abilities were progressively declining.

In November 2010, another will was prepared by Mrs. Wotton. The drafting lawyer, Mark Ouimet-McPherson, met with Mrs. Wotton and assessed her capacity. Mr. Ouimet-McPherson believed that Mrs. Wotton had testamentary capacity so he took her instructions and prepared and executed the documents. The new will stipulated that the residue of the estate was to be divided equally amongst John and two of Mrs. Wotton’s three grandchildren: Cindy and John Jr. It also named John as estate trustee, with Cindy as the alternate.

At the time of Mrs. Wotton’s death, John had advanced dementia and was incapable of acting as estate trustee. John’s wife, Rosemary, acted as his litigation guardian and filed a Notice of Objection to Cindy’s application for a Certificate of Appointment of Estate Trustee. Rosemary’s objection was based on the fact that the November 2010 will should be declared invalid as Mrs. Wotton lacked testamentary capacity at that time.

In 2019, a posthumous testamentary capacity assessment was conducted by Dr. Francine Sarazin. Dr. Sarazin found that “there [was] reasonable evidence in support of a determination of incapacity when Mrs. Wotton gave instructions to draw up a last will and testament.”

The Decision

The court relied on O’Neil v. Royal Trust Co. and Vout v. Hay to summarize the legal principle regarding the onus of testamentary capacity: A presumption of capacity exists until it is shown that suspicious circumstances existed regarding the preparation of the will. If suspicious circumstances exist, that presumption is no longer in effect and the onus then shifts to the party propounding the will to prove that the testator had testamentary capacity.

Since medical evidence found that Mrs. Wotton suffered with a form of mild to moderate Alzheimer dementia at the time of signing the 2010 will, and due to Mrs. Wotton’s age and the changes between the two wills, the court determined that the onus should shift to the propounder of the November 2010 will to show capacity.

The court accepted the posthumous assessment of Dr. Sarazin, but the assessment was only afforded a modest degree of weight for the following reasons:

  • Since it was a retrospective capacity assessment which went back nine years, the court thought that it was not very reliable;
  • The assessment was not an exhaustive review of Mrs. Wotton’s life in and around the time she signed the will; and
  • Cindy’s material was not provided to or reviewed by the assessor.

The court then turned to Mr. Ouimet-McPherson’s evidence. In his meeting with Mrs. Wotton, Mr. Ouimet-McPherson filled out a checklist for her. Based upon Mrs. Wotton’s answers to Mr. Ouimet–McPherson’s questions, her knowledge of her family and her assets, he was satisfied that Mrs. Wotton had testamentary capacity.

The court also took other evidence into consideration, such as the medical assessments conducted in November 2009, September 2010 and October 2010. While the assessments provisionally diagnosed Mrs. Wotton with a mild to moderate form of dementia, they noted that she was able to manage daily living on her own as well as her finances.

The court took this evidence and applied it the Banks v Goodfellow test:

  • Understanding the nature of the act of making a will and its consequences: At the meeting with Mr. Ouimet-McPherson, Mrs. Wotton commented that she wanted to be fair and avoid disputes. This demonstrated that she likely understood the consequences of what she was doing.
  • Understanding the extent of one’s assets: In general terms, Mrs. Wotton knew the assets she owned. Although she could not recall specific details such as knowing whether her life insurance lapsed or the last statement of her bank account, Mr. Ouimet-McPherson felt that Mrs. Wotton responded appropriately for someone her age.
  • Understanding the claims of those who might expect to benefit from the will, both of those to be included and excluded: From Mrs. Wotton’s instructions, it seems as if she knew she was changing her 1992 will to divide her assets three ways as opposed to leaving everything to John.
  • Any disorder of the mind or delusions: Mr. Ouimet-McPherson’s evidence seems to suggest that Mrs. Wotton knew what she was doing at the time the will was executed and was not suffering from any delusions or disorders of the mind that impacted her intentions.

After considering all of the above, the court ultimately concluded that, at the time the November 2010 will was executed, it was more likely than not that Mrs. Wotton had testamentary capacity. As such, Cindy was named as the Estate Trustee.

Kay v Kay Sr. provides a helpful review of the test for testamentary capacity as set out in Banks v Goodfellow. It emphasizes that testamentary capacity is to be determined based on the facts and circumstances of each case. The drafting lawyer’s assessment plays a major role in assessing capacity. A posthumous testamentary capacity assessment may also be given considerable weight if it is conducted around the time the deceased’s capacity was in question and if the assessor’s review of the deceased’s life around the time they signed the will is fairly extensive.

Thanks for reading – Have a great day!
Ian Hull and Celine Dookie

30 Sep

Preparing for estate mediation

Ian Hull advocatedaily 0 Comments

With the enactment of Rule 75.1 of the Rules of Civil Procedure, those involved in disputes relating to an estate, trust or substitute decision-making matter in Toronto, Ottawa or the County of Essex are referred to mediation unless there is a court order exempting it under Rule 75.1.04.

18 Sep

Craymer vs. Craymer, a Legal Drama

Ian Hull Estate & Trust, Estate Litigation, Estate Planning, Passing of Accounts, Power of Attorney, Uncategorized 0 Comments

No, we are not referring to the 1979 film featuring Dustin Hoffman and Meryl Streep, but a far more recent (but nonetheless interesting) legal dispute involving an application to pass accounts, suspicious activity on behalf of an Attorney for Property, and the resurgence of the equitable defences of laches and acquiescence.

The Facts

A complex series of facts is present in the Estate of Ronald Alfred Craymer v. Hayward et al, 2019 ONSC 4600: two Attorneys for Property, six marriages, seven children, thirty years of estrangement between Ronald and his four children, and virtually no financial records for the period during which the first Attorney for Property oversaw the affairs of her incapable husband’s estate.

The cruxes of the dispute are that the first Attorney for Property (Joan, Ronald’s wife) transferred the title of the matrimonial home to herself, she kept scanty financial records, and the value of her assets (over $1 million) dwarfed that of her late husband’s (around $35,000). When Joan died suddenly, John Craymer (Ronald’s son, the plaintiff) applied for a passing of accounts and the second Attorney for Property (Linda, Joan’s daughter) was left in the unenviable position of potentially having to answer for the conduct of her late mother in relation to accounts of which she, Linda, had no knowledge.

The Law

Under section 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, the Court may order a passing of accounts. In considering whether to do so, it should examine “the extent of the attorney’s involvement in the grantor’s financial affairs and second whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs” (McAllister Estate v. Hudgin, 42 E.T.R. (3d) 313 (ONSC), at para 13). Since section 42 carries a high threshold, and Linda was not responsible for her mother’s conduct, the Court did not grant the application. In its reasons, moreover, the Court found fault with the transfer of the home, but given the marital relationship between grantor and attorney, it did not attach much weight to the scantiness of detailed accounts.

Noteworthy in this case is the Court’s consideration of the equitable doctrines of laches and acquiescence in the context of a motion for a passing of accounts (in which, in Ontario, there is no limitation period). In determining whether these defences apply, the Court looks at the length of the delay and the resulting prejudice. Neither of these components were applicable here, for when John learned of the value of his father’s estate as well as the transfer of the home into Joan’s name, he acted promptly. Instead, his application was dismissed on the Court’s discretion.

Thank you for reading.
Ian Hull & Devin McMurtry

04 Sep

Preparing for Estate Mediation

Ian Hull Estate & Trust, Estate Litigation, Estate Planning, Litigation, Mediators Tags: , , , 0 Comments

With the enactment of Rule 75.1 of the Rules of Civil Procedure, those involved in disputes relating to an estate, trust or substitute decision-making matter in Toronto, Ottawa or the County of Essex are referred to mediation unless there is a court order exempting it under Rule 75.1.04.

As lawyers, “mediation” is a term we are familiar with. However it may not be as familiar to clients. Many of them may have never heard of “mediation” before. As such, if you or a client have an upcoming mediation, it is important to prepare early to avoid being caught off guard during the mediation.

What is Mediation?

Mediation is a form of alternative dispute resolution where people can settle their disputes outside of court. It is a voluntary process in which the parties meet with a neutral third-party (referred to as the “mediator”) who provides them with assistance in negotiating a settlement. The mediator does not impose a judgment as the process is led by the parties.

Mediation vs. Litigation

The big “pull factor” to mediation is that it vastly differs from litigation. The major differences include:

  • Decision-Making: With mediation, the parties decide the outcome but with litigation, a judge imposes his or her decision upon the parties
  • Private vs. Public Process: Mediation is a private and confidential process, whereas litigation is a public process
  • Costs: The costs of mediation are typically lower than that of litigation
  • Time: The mediation process tends to be faster than litigation
  • Adversarial vs. Non-Adversarial: Mediation is viewed as a non-adversarial process, whereas litigation is viewed as an adversarial process

Preparation for Mediation

Preparation for mediation should start well in advance of the mediation date.

Preparing the Client

Start by explaining to the client what mediation is and how the process works. Assure the client that the mediator will be a neutral facilitator and that abusive behaviour by the other party will not be tolerated.

As part of discussing the mediation process with the client, let the client know about the time commitment that mediation entails. The mediation could last the entire day or even multiple days.

Determine the client’s interests and goals for the mediation. Are they looking to settle the case at mediation or are they prepared to go to trial? What types of offers would they be willing to accept?

Preparation for the Lawyer

Know the mediator’s background and approach beforehand. Is the mediator someone who has a background in estates law? Are they a lawyer? Are they a former judge? Knowing the answers to these questions can help the lawyer determine what approach would be the most beneficial to employ during mediation.

Prepare a comprehensive mediation brief and send it to the opposing counsel and mediator well in advance of the hearing date. A comprehensive mediation brief can maximize a lawyer’s presentation at the mediation. It is helpful to include copies of all relevant documents, such as the wills in question, within the brief. Additionally, it might be helpful to include a chronology of events as a schedule to the mediation brief.

If the mediation results in a settlement, ensure that the terms of the settlement are formally documented and that each client has signed the document. In some cases, however, a “cooling-off period” of one or two days from the proposed settlement might be necessary.

At the end of the day, the best approach a lawyer can take in preparing for mediation is to know the mediator, prepare their documents ahead of time and provide the client with as much information about the mediation process as possible. The more prepared the lawyer and the client are, the smoother the mediation will go.

For more information on preparing your client for an estate mediation, visit this link.

 

Thanks for reading,

Ian Hull & Celine Dookie

14 Aug

Squash or breakdancing at the Olympics – which would you choose?

Ian Hull Uncategorized Tags: , , , , 0 Comments

The Olympics seemed a lot simpler when Montreal hosted the summer games in 1976. Yes, there were some bizarre sports that seemed better suited to ancient Greece (hammer throw anyone?). But at least these bizarre sports were ones we knew well from previous games – and we were very familiar with most of the other stuff (like cycling, rowing, swimming, and running).

Times have changed

While many sports have been added and dropped from the modern Olympic games over the years, some new additions for 2020 certainly catch the eye – namely sport climbing, surfing, and skateboarding.

All of these sports have been added to the exclusion of a sport – played by 20 million people worldwide – that has been working to be recognized as an Olympic sport for decades: squash.

The most recent pitch by the World Squash Federation was for squash to be included in the 2024 games in Tokyo – and it was confident that it had met all the criteria. But in February, the International Olympic Committee chose another sport to be added instead of squash: breakdancing.

Bye-bye squash

You can read about the reaction of the squash community here. In short, they were stunned. Millions play the game, television coverage has increased, and it’s recognized as one of the most demanding sports to play.

But Olympic organizers have stated that their agenda is more youth-focused and more urban, which is why skateboarding and breakdancing are in and squash is out.

On the one hand, I get it. Squash has an elitist history (there was a squash court on the Titanic, available to first class passengers) and it’s mostly played in expensive clubs. Breakdancing and skateboarding are available to all, for next to nothing in cost. And they are fun to watch too.

On the other hand, if the Olympics continues to include even more elitist sports like equestrian, it seems unfair to exclude an individual sport that has a storied history, gender balance, and active youth programs worldwide.

I look forward to watching the skateboarding and breakdancing competitions in coming Olympic games. Don’t get me wrong. But I’ll shed a tear for a sport I think deserves a place on the podium as well.

Now, if we could just get rid of that hammer throw…

Thanks for reading!
Ian M. Hull

31 Jul

Islands off the coast of Toronto?

Ian Hull Estate & Trust, Estate Litigation, Estate Planning, In the News 0 Comments

I love people who make predictions – especially when it’s in their area of expertise. They aren’t always right of course, but you at least benefit from some “best guesses” by people who work in the area.

The Huffington Post published an article a few months ago by realtor Nathan Dautovich about what’s ahead for the Toronto housing market in 2019. Check it out here.

It contains the usual forecasts for housing and rental prices, which are always useful to learn. But what struck me were a couple of predictions – one for the present, one futuristic – for adding housing stock to a crowded city that’s still growing.

  1. Laneway housing

Did you hear about this? I hadn’t. Last year, Toronto adopted a new policy allowing laneway housing in what are essentially the old city of Toronto and East York areas. This presentation provides a great overview of the concept.

A laneway house is a detached secondary building that remains under the same ownership as the main house. More like a coach house than a full house, they’re intended for rental housing, such as for family members (adult children or aging parents) or others. The goal is to increase city density and the supply of low-rise neighbourhood-oriented rental stock. Rental income can also help owners of the primary home with mortgage and other costs.

The article suggests that innovative companies may be knocking on the door of homeowners, offering to design, develop, and finance a laneway house. So, get ready for that “knock” if you own a home on a laneway in Toronto.

  1. Islands off the coast of Toronto

The Huffington Post article notes that most of the land south of Front Street used to be under water – so there is precedent for “adding land” to our shoreline. Today, look no further than the Leslie Street spit, which continues to grow. So how about some housing islands off the eastern or western banks of Toronto? A little imagination could go a long way. We already have island housing on our existing Toronto Island chain. Are we ready for more?

Whether you choose to focus on the present or the future when it comes to real estate in Toronto, you should always be cognizant of the tremendous effect large assets like your real estate property can have on your estate. When contemplating real estate decisions, it is important to think of it as an intergenerational asset, as it will affect the makeup of your estate in a significant way.

Thanks for reading!
Ian Hull

17 Jul

5 ways to make your summer rock

Ian Hull Uncategorized Tags: , , , , 0 Comments

Summer is fleeting – and we often put pressure on ourselves to make the most of this 3-month sliver of warmer weather.

But here’s the issue. Day-to-day life doesn’t stop. You still have to work most weeks, kids need tending, dogs need walking, and meals need making. And expenses don’t go away – there’s a limit on what you can spend.

So, instead of focussing on big, time-consuming, or costly things that can make a summer special (trips, hot-air ballooning, cottage rentals), how about some small things that can rock your summer.

Here are five small activities that you can easily work into your summer plans.

  1. Jump in a fresh water lake: You actually don’t have to jump, but there is no summer experience that can match the feel of a Canadian freshwater lake. Even if you’re a non-swimmer, put on a life vest and wade in. Just once. I guarantee it will be memorable.
  2. Take in one outdoor concert or event: Shakespeare in the Park, a jazz concert, a baseball game – there are many ways to enjoy some sport or culture in the warmer weather. It’s a chance to sit, relax and let someone else do the entertaining.
  3. Eat ice cream on a hot night: Your diet is no excuse – there are sugar-free and vegan ice cream options everywhere these days. On a hot day, wait until dark then head out for ice cream. The combination of heat, cold and dark can make for some memorable moments.
  4. Plant a vegetable, somewhere: It can be in a garden or a pot, or secretly hidden in a park, but plant something that you can harvest later in the summer. You’ll get great satisfaction in eating a home-grown carrot, bean, tomato, or zucchini.
  5. Have a BBQ or patio dinner: If you have a BBQ, use it – the smell alone will bring back memories of summers past. If you don’t BBQ, make a point of having a patio dinner, at a restaurant or at home. And as you’re sitting there, remember: you can’t do this in January.

Here’s to better weather!
Ian M. Hull

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