Author: James Jacuta
We live in a big and beautiful country that is great for summer vacation travel from sea to sea. The vast distance from British Columbia to Nova Scotia is not just geographic, as shown by court decisions involving the review of wills. There is also a great deal of public policy distance between these provinces.
In the recent British Columbia decision on July 17, 2019 of Grewal v Litt, 2019 BCSC 1154 the four daughters of the deceased sought a court-ordered variation of the mirror wills of their parents using the Wills, Estates and Succession Act, S.B.C. 2009, c. 13. In their wills, the parents left 95% of their nine million dollar estate to their two sons and the remainder to their four daughters. The daughters sought and obtained a variation based on the facts and legislation with the court ordering 15% to each of the four daughters and 20% to each of the two sons.
In the Nova Scotia decision in Lawen Estate v Nova Scotia Attorney General, 2019 NSSC 162, the court ruled that the deceased had a great deal of testamentary freedom and that this freedom was constitutionally protected. The Estate of Jack Lawen was subject to a claim by some of his adult and competent children under the Nova Scotia Testator’s Family Maintenance Act for a change in the distribution of assets from what was specified in his will. In this case, the daughters applied, but they were not successful. It is interesting to note that the Judge agreed with the argument that the Canadian Charter of Rights and Freedoms could be used to strike down those provisions of the legislation that allowed the adult competent children to even bring their application to the court. The Charter, it was argued, protects the right to decide where the property would go and to disinherit his children. Presiding Justice John Bodurtha wrote in his decision dated May 24, 2019, “A testamentary decision is a fundamental personal decision that is protected under section 7” of the Charter.
Legislation that infringes and limits a testator’s freedom, however, can be justified in some instances, and to certain degrees, depending on the province and the case facts. If you try to disinherit your dependant spouse then the courts would step in and limit your testamentary freedom. This also applies to not providing for dependants who are minor children, non-competent adult children, and even competent adult children in some provinces. One could ask, however, if it is fair and just that the daughters in British Columbia could achieve an equitable distribution of the family estate, but in Nova Scotia, they would have failed.
Canadian limitations on testamentary freedom are small and balanced in comparison to the forced heirship provisions of many European civil law jurisdictions. In those countries, a testator is forced by law to leave a portion of the estate to family members. The percentage of the estate to be distributed and those who are eligible varies by jurisdiction. It is an interesting public policy approach to make the family unit legally paramount in forced heirship jurisdictions, and not the individual testator.
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With the summer vacation now at the midpoint, many people are travelling as part of their holidays. But, what can one do when a friend or family member dies while you are on vacation? Does your trip have to be cut short? Are there additional charges to be paid for changing dates on plane tickets and for hotel room cancellations? Not any longer. In many cases, a livestream funeral service is now available. Some companies provide this service via the internet. Or, depending upon the funeral home, wireless can be used to stream the memorial service using facetime or skype. There are even websites that provide information and assist with the planning of the do-it-yourself camera work.
There are many advantages for those who cannot attend even if not on vacation. Other reasons to not attend in person might be because of illness, distance, cost or other barriers. Now almost everyone can attend from wherever they are.
Also, the funeral service can be archived and watched again online. This can be of benefit not only to those who could not attend the service in person but also to family members who were there. It can help in dealing with their loss or to simply remember things that were missed in the immediate grief of the service. Technology has developed rapidly. It has become accepted and has recently extended into the areas of wills and estates, providing services such as online obituaries instead of publishing in newspapers; advertising for estate creditors using online services instead of much more expensive newspaper print notices; cataloging and registering the location of wills (in some jurisdictions); assisting lawyers in automated interactive drafting of wills (like the Hull e-State Planner); recognizing the validity of electronic wills (in some jurisdictions); among others. The trend towards even more changes coming in this area is strong and there is hope that expanding technology use will serve to assist friends and family members through difficult times.
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There is a well-known case that students read while in law school that has to do with requirements for making a will in your own handwriting. It involves a will by farmer Cecil Harris who was farming near Rosetown, Saskatchewan when on June 8, 1948 while out working alone in his field, he suffered a misfortune and was pinned under his tractor for ten hours. With his pen knife he scrawled on the tractor’s fender: “In case I die in this mess, I leave all to wife” and added his signature. The Saskatchewan court admitted the tractor fender into probate as a will. It had met the legal requirements of being in his own handwriting and signed by him, and the fender is now on display at the University of Saskatchewan Law School.
Making a will is a serious and often complex endeavour that one should not casually undertake without professional advice. Having said that, the law in many countries recognizes a “holographic” or handwritten will, when properly completed. In Ontario the relevant legislation is in the Succession Law Reform Act, which states, “A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. R.S.O. 1990, c. S.26, s. 6.”
Forty years ago when I first read the “tractor” case in law school in 1979, the most modern piece of equipment in many law offices was the electric typewriter. Since then, changes include the introduction of the fax machine, the word processor and then the computer, the internet and email, and smart phones. Law students today are of a generation that grew up with smart phones in their hands starting at about the same time they learned to walk.
Perhaps it will soon be time to recognize a “handwritten” electronic holograph will. In Ontario there have been none so far. Nevertheless, it seems to be an interesting question. For example, if I take my ipad and handwrite on the device “All to my wife” and sign it as my holographic will so it is available in electronic form, it will not be recognized as valid in Ontario. However, if I take the same ipad and damage the surface of the screen by scratching on it, “All to my wife” with my signature, then this will be recognized as a valid will. This seems to me to be an incongruous result. In a time when everyone has a smart phone the matter might yet be resolved by new legislation or perhaps even by an activist court and a modern version of the tractor case.
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On October 3, 1942 the Calgary Herald reported that the shortest will was four words, “Jake everything is yours”, handwritten on a piece of paper by his cousin Reinhard Z. Nice and recorded at Norristown Pennsylvania by Registrar of Wills, John H. Hoffman. The estate was valued at $16,000 (which would have bought a house in those days).
On November 29, 1965 the Windsor Star reported that the shortest will in England was from a case in 1906 where the will admitted to probate was the three words: “All for mother”. It involved the case of Thorn versus Dickens which was a dispute between the deceased’s mother and the deceased’s widow.
On July 9, 1979 the Vancouver Sun reported that – According to Guinness – the shortest will in the world was the two words: “Vse Zene” the Czech for “All to wife” dated January 19, 1967 by Herr Karl Tausch of Langen, Hesse, Germany.
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The Guardian newspaper of London England reported on November 9, 1925 that the last will and testament of Frederica Evelyn Stilwell Cook, who died January 9, 1925, age 68, is thought to be the longest will ever filed for probate. The will was 1066 pages. It was 95,940 words long. It was entered into probate at Somerset House, the then home of the Principal Probate Registry in London, on November 2, 1925. Probate of the will was granted to Cook’s brother and to her son, both of them Londoners. Practically all of her bequests were to her children. The will soon became a topic of international interest.
The Windsor Star newspaper reported on the matter on December 11, 1925 and added that, “Most of the will is in the testatrix’s own handwriting. Four large books, heavily bound, were needed for the voluminous treatment”.
The Saskatoon Star-Phoenix newspaper reported further details on March 18, 1926 that the will was dated October 17, 1919 and that there was a codicil dated March 2, 1924. The deceased had provided a priced inventory of “laces, jewellery, furs, and objects of art” and disposed of property valued at approximately $102,915; a large fortune in those days. She also provided specific instructions that her executors were directed to, “burn her diaries, to bury her wedding ring with her, and to see that her age was not inscribed on her tombstone”.
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Abraham Harold Maslow ( April 1, 1908 – June 8, 1970) was a psychologist best known for creating Maslow’s “Hierarchy of Needs” theory on fulfilling human needs in priority, culminating in self-actualization. But, he is also known for the “Law of the Instrument” or the over-reliance on the familiar. He is quoted as saying, “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” (The Psychology of Science 1966).
When thinking of a Power of Attorney, the temptation for an estate lawyer may be to first think of the Substitute Decisions Act. However, there are times when the Powers of Attorney Act might be more appropriate for part of an estate plan or administration. For example, dealing with a beneficiary resident in a foreign jurisdiction can be made much more manageable with a Power of Attorney. This type of Power of Attorney does not, however, qualify as a Continuing Power of Attorney.
Another consideration is the differences in the form and wording of the Power of Attorney and the formalities of execution. As noted on page 8 of Kimberly Whaley’s “Powers of Attorney” (2016) in a chapter by Andrea McEwan:
“The Powers of Attorney Act does not impose any formal requirements for the power of attorney document. This is in contrast to the Substitute Decisions Act which is formalistic, with a prescribed form, and validity and execution requirements.”
The Continuing Power of Attorney has strict requirements for two independent witness signatures, whereas the Power of Attorney Act does not state any witness requirements or formalities of signing. Consideration should therefore be given to those occasions when you could rely on the Powers of Attorney Act instead of the Substitute Decisions Act.
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About six months ago I blogged on aspects of wire transfers of money to beneficiaries in foreign jurisdictions. These transfers require some attention to issues like the applicability of the Harmonized Sales Tax (HST) or of Section 116 of the Income Tax Act to any portion of the inheritance and trustee or professional fees. As well, requirements for the SWIFT code or IBAN code number have to be fulfilled. This blog is an update to advise that in my experience there has been a noticeable change in the last couple of months involving bank wire transfers.
Banks have significantly increased their compliance, monitoring, and oversight practices. Transfers that were routinely completed in a couple of days in the past can now, in some cases, take weeks to complete. Clearly, additional procedures aimed at preventing money laundering and also designed to enforce sanctions against Russian and other entities are having an effect. These procedures have resulted in inconvenience and delay to those involved and it is best to be aware of the possibility of these delays and how they might impact one’s practice.
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Our firm has acted in some of Canada’s largest and most complex inheritance cases, and because of this recognition we get occasional inquiries about “Inheritance Scams”. It should be noted that legitimate inheritance locating efforts can be required for “missing heir cases”, but on legitimate estates you would not be asked for money or your banking information. “Inheritance Scams” do exactly that, with the lie that they will deliver a large sum of money to you, if you pay some of the fictional expenses in advance. The most interesting statistics that I found on this scam were on an Australian government website appropriately named “Scamwatch”. In 2018 in Australia there were 2,828 reports of “Inheritance Scams” of which 3.0% resulted in actual financial losses of $2,172,157 where the majority of losses were suffered by those who were over 65 years of age. For more information on how to protect yourself from scams:
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The “Court of Missing Heirs” was a radio show on air from about 1937 to 1947 where they tried to “locate missing heirs” of unclaimed estates. Some of the cases solved by the program include: Michael Cusack’s nephew was located in regard to a $6,000 estate; Myrtle Garvey Juranics, received $4,000 from the unclaimed estate of her husband; A son and daughter of Joseph J. Hoagland received $4,500 after his death. The above sums of money were substantial at the time and likely would have been sufficient to purchase a house in those days.
Locating “legal heirs” continues to be an issue on some estates and can occur today in a variety of situations, including when a deceased dies without having left a will, or leaving an imperfect or invalid will. The task of “identifying” and then “locating” missing heirs is often difficult and can land on a lawyer’s desk. The task can become even more complicated when the potential “missing heirs” are outside of Canada. This frequently requires a lawyer with specific country experience to resolve the problem. As well, someone who has previously worked with trusted colleagues in other countries.
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There are instances when a lawyer is required to make efforts to “locate missing heirs” of an estate, and until the heirs are identified and located these efforts can be described as being to the “benefit of the unknown heirs”. This work has been done by lawyers for over one hundred years. One of the leading cases is from 1902, that of Neville v Benjamin (1902) 1 Ch 723, that sets out some of the steps that can be taken to obtain a “Benjamin order” in cases where an estate trustee is not able to distribute and finalize administration of an estate because of missing heirs. In popular culture, being a person identified as a “missing heir” has been the subject of much interest. “Big legacies awaiting lost heirs” was the premise of a segment on the Art Linkletter show, where he conducted a television search for missing heirs. The Linkletter show was broadcast in various forms from 1945 to 1970 and had huge audiences in the millions.
A 1965 article in the Madera California Tribune newspaper on the Linkletter search for missing heirs started with the attention getting line “Do you ever wish a long lost relative would leave you a legacy of a bundle of money?” One story featured was of a talented machinist who chose to live the life of a recluse, existing on a diet of dry cereals. It was also known he didn’t trust banks and that he preferred to store his money by hiding it in his house. He died at age 58 and was dead several days before someone made the discovery. The house was robbed of the cash, but the remaining business assets were sold in the estate sale. The business assets went to a sister of the deceased, who only learned of it from a neighbor after she heard it on the Linkletter show. Wouldn’t you want to be “found” if you were indeed “a missing heir”, whether by a lawyer or a television show?
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