Author: Ian Hull
Most of us are used to meeting our clients in person. With that option on hold for now, we are having to adopt new practices, like “virtual” meetings. How can we make virtual meetings work for estate planning where communication is so important?
Like many of you, we are turning to technology.
Remote meeting software, like Skype and Zoom, allow us to communicate, see and hear our clients and vice versa. And yet, there can still be a disconnect in trying to ensure that both parties understand one another.
There is now software that can help with that communication. Hull e-State Planner, which we created, is cloud based software that can be accessed from home and shared with your client via Zoom or Skype. It’s a visual platform so you and your client can literally be on the same page – even in different locations.
The client’s family tree and list of assets are displayed on the screen.
You can drag and drop assets, creating legacies and bequests, while the client watches their plan being developed.
While discussing their instructions, you can show the client the different implications of their decisions.
At the meeting, you can give the client a graphic summary of their Will.
Once the meeting is over, you can automatically generate the Will and Powers of Attorney in Word format.
We have found that virtual meeting software, when coupled with Hull e-State Planner, can help make those estate planning meetings much more efficient and effective.
As well, we also understand there has been a financial impact to your practice during this time. In what we hope may help a little, we have decided to waive all Hull e-State Planner fees, for the foreseeable future until things settle down.
We’d be happy to have you join us for a Free Webinar where we will show you how we are using virtual meeting software and Hull e-State Planner together and our thoughts on getting Wills signed up.
The Webinars are:
Click on the date to sign up for the Webinar.
Wishing you and your loved ones good health,
Over the past few blogs, we discussed alternates for having Clients sign Wills when we can’t meet with them in person.
One of the options was to have client sign holograph Wills. While that may work with more straightforward instructions, it won’t be practical where testamentary trusts are necessary.
In today’s blog, we will focus on an alternate option – “incorporation by reference” of an unsigned “Will” into a holograph Will.
The terms of one document (“the Incorporated Document”) can be included in another document without repeating all of it provisions. This is known as “incorporation by reference”. In order to incorporate the terms of the Incorporated Document into a Will, there are four well established requirements:
- The Incorporated Document must be referred to in the Will;
- The reference in the Will to the Incorporated Document must be sufficient to identify the Incorporated Document; and
- The Incorporated Document must be in existence at the time the Will is signed. It cannot come into existence at a future date.
- The Incorporated Document must be “entirely separate and apart” from the Will.
The most common examples of incorporation by reference in a Will are a binding memorandum regarding the disposition of Personal Effects and a trust company’s compensation agreement.
Rather than just a list of personal effects or compensation agreement, can the Client incorporate an entire unsigned Will by reference?
Where a testator in a duly executed will or codicil refers to an unattested written paper (whether of a testamentary form or character or not), as a written paper then in existence in such terms that it may be ascertained, the paper so referred to becomes part of his will, in other words, is incorporated therein; provided always that the paper referred to is actually in existence at the time of the execution of the will or codicil. Probate Practice and Re Warren (1930), 38 O.W.N. 358 (Ont. H.C.),
This concept was not disputed in Re Coate Estate, (1987) 26 E.T.R. 161, although the facts in that case did not lead to a finding of incorporation by reference.
Similarly, in Re Dixon-Marsden Estate (1985), 21 E.T.R. 216 (Ont. Surr. Ct.), the Court found that the particular handwriting did not qualify as a holograph document. Nevertheless, Judge Misener seemed to endorse the use of a holograph document incorporating the terms of a formal, but unexecuted Will. In that case, a typed Will on a single piece of paper was not properly signed with two witnesses. However, at the bottom of the page the testator wrote, in his own hand, “The above-mentioned are in short those to whom my estate is left” and below that he signed his name.
“I have always understood that the doctrine of incorporation by reference contemplates the existence of a testamentary document that qualifies for probate, independent of the document sought to be incorporated. If that is so, the condition precedent to the argument that a typewritten document is incorporated is the tendering of a document wholly in the handwriting of the testator and bearing his signature that can be admitted to probate all by itself. Therefore, on the facts of this case, the handwritten words ‘the above-mentioned are in short those to whom my estate is left’ must be capable of admission to probate.”
In that case, the handwritten portion could not be separated from the typed portion and so did not satisfy the requirement that the two documents be “entirely separate”.
In Re Chamberlain Estate, the deceased enclosed two documents in an envelope:
- A printed Will form, which the deceased signed but was not witnessed.
- A single sheet of paper wholly in the handwriting of the deceased which listed several of the deceased’s assets. The deceased wrote his name at the bottom of the sheet.
The issue before the court was whether the documents could be read together as a valid Will.
Justice Maher emphasized that although documents referred to in a testator’s Will or codicil may not be duly executed in accordance with The Wills Act, they may nonetheless be incorporated in the Will.
Justice Maher found that the document written wholly in the handwriting of the testator was a valid holograph Will and it met the conditions outlined above. Although the documents were not completed at the same time, the incorporation by reference doctrine still applied as they were testamentary in nature and wholly in the handwriting of the deceased.
The second document being testamentary in character and wholly in the handwriting of the deceased is a valid holograph will and it has been held that the doctrine of incorporation by reference applies to holograph wills: Re Long Estate,  1 All E.R. 435.
Based on these authorities, it appears that a holograph Will could incorporate the terms of a non-executed formal Will as long as the 4 conditions were properly met.
However, there is an outlier Ontario case that is problematic- Facey v. Smith (1997), 17 E.T.R. (2d) 72 (Ont. Gen. Div.).
In Facey, the court was faced with an unseemly fact scenario. The deceased was murdered by her husband who later, on the same day, committed suicide. The issue was whether certain writings made by the deceased were holograph Wills and if so, did thy properly incorporate the terms of a formal Will by reference.
The court found that a holograph documents did not qualify as a Will because it did “not show a fixed final intention as to disposition on death”. However, in obiter, the Court said the following:
“I have no difficulty with the doctrine of incorporation by reference applying when the Will into which type written words are to be incorporated is itself a witnessed Will. When those type written words are declared incorporated, the statutory requirement of the testator’s signature duly witnessed is wholly satisfied. In the case of a holograph Will, however, incorporation of typewritten words does not meet the statutory requirement. That requirement is that the holograph Will, to be valid, must be “wholly by his own handwriting and signature” and patently the incorporated typewritten words are not in the testator’s handwriting. The doctrine of incorporation by reference was developed to relieve against the harshness of the Wills Act and to give effect to the intentions of a testator. I am not satisfied that the law in Ontario is or should be that typewritten documents can be incorporated into a holograph Will. The purpose of requiring certain formalities in the making of Wills is to prevent fraud and no fraud is here alleged. Although not formally required, my answer to question two is “no”.
If you decide to recommend this strategy, here are a few suggestions:
- Have the formal Will identified as “Schedule A”;
- Ensure that the Holograph document qualifies as a valid Will, both in terms of execution and in terms of testamentary intent.
- Have the Client initial each page of “Schedule A” and sign it.
- Properly incorporate by reference Schedule A in the Holograph Will.
Here is a link to a sample Client Instruction Sheet for your consideration. Use with caution!
Hoping you are safe and healthy,
In our blog on March 18th, we gave some ideas for getting formal wills executed when the lawyer couldn’t be present to witness. In today’s blog, we have a few more options for our clients to consider if getting a Will executed immediately is necessary.
As we all know, holograph Wills are valid in Ontario. To qualify as a valid holograph Will, the document must be in the handwriting of the Will-maker and signed. The Succession Law Reform Act speaks to being “wholly” in the Will-maker’s handwriting. However, case-law supports the validity of a handwritten portion of a document, even if the entire document is not in the Will-maker’s handwriting. To the extent any part of the document is not in the Will-maker’s handwriting, that part will be excluded from the otherwise valid holograph document.
We have several clients who are in isolation making it impossible to have two witnesses execute our drafted Will. For a simple but, emergency situation, we are recommending that a holograph Will be done. We have a few key provisions to be included as a bare minimum:
- Identifying the document as a Will;
- Revoking prior Will;
- Appointing an executor;
- Simple dispositive provisions;
- Executor’s power to sell; and
The key instructions are:
- The entire document must be handwritten by the Will-maker; and
- The Will-maker must sign the document at the end.
Proof of handwriting will be necessary if the holograph Will must be probated. One option that may come in handy is to have the Will-maker video the writing and signing of the document.
We also strongly recommend that the client come in to sign a formal Will as soon as possible.
Click on the link to see a sample Client Holograph Will Instruction sheet for use in these kinds of situations.
In Monday’s blog, we’ll discuss the novel idea that our colleague, Mary Stokes raised. Can a client use a simple holograph Will to incorporate the terms of a comprehensive formal Will which can’t be properly signed because of a lack of witnesses?
Hope you are all safe and healthy,
Like many of you, we are struggling to figure out ways to get our clients’ Wills executed during this period of social distancing.
Ontario has very strict rules on how a Will has to be executed in order for it to be valid. Unlike many other Provinces, Ontario does not have “substantial compliance” legislation that allows a Court to validate a Will that has not been duly executed.
These rules cannot be changed except by legislative action. The Succession Law Reform Act would have to be amended. The Law Society of Ontario is not able to give permission to override these requirements.
The key requirements are that:
- The Will-maker must sign or acknowledge his/her signature in the presence of two witness; and
- Both witnesses must sign in the presence of the Will-maker and each other.
The “presence of” requirement is generally regarded as having to be in the same room and be able to see one another signing the Will.
We have almost always resisted sending the Will out to be executed by the client without our presence for fear that it would not be executed properly. However, under the current circumstances, we are adopting a process for our clients who need to have their Wills signed.
Protocol for Remote Execution
Firstly, we explain to the client the strict rules for signing the Will and that the Will won’t be valid unless these rules are followed exactly.
We also remind them of who cannot be a witness:
- A Beneficiary (even a contingent beneficiary);
- The married spouse of a Beneficiary; or
- A person under age 18.
A person who is named as an executor, but not a beneficiary, can be a proper witness.
We’ve created this Client Will Signing Checklist document that we send to the client and ask them to complete during the Will signing and send back to us. Here is a link to the document.
Some firms are asking their clients to video the Will execution process in such a way that all three parties, the Will-maker and the two witnesses are visible. The client can send a copy of the video for the lawyer’s files. Of course, this is not required, but may put you more at ease when you see that they did it correctly.
The Affidavit of Execution can be prepared and sworn after the signing.
Once we are able to interact in person, we are recommending that our clients come in to re-sign their Wills at our office, just to be on the safe side.
Thank you for reading.
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: