Author: James Jacuta
In Hubschi Estate 2019 BCSC 2040, it was found that the notation left on a computer by the deceased was sufficient to be ordered as his valid electronic will.
Mr. Justice Armstrong reviews the facts and the law in a sixteen-page decision which includes the following paragraphs edited for brevity:
On Mr. Hubschi’s death, his family did not find a will meeting the requirements of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (WESA). His family did, however, find a document/record on a computer in his home indicating as follows:
“Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor”.
The document does not meet the formal requirements of the Wills Estates and Succession Act (WESA). The issue on this application is whether the document can be cured, pursuant to s. 58 of WESA. If the document can be cured, Mr. Hubschi’s significant assets will be distributed to the foster siblings he grew up with in accordance with the intentions set out in the document. If the document cannot be cured, Mr. Hubschi has died intestate, and his assets will be distributed, in accordance with s. 23 of WESA, to blood relatives in Switzerland with whom he had no relationship.
Although the words in his computer record contemplate preparation of a formal will at some time in the future, I conclude that Mr. Hubschi’s testamentary intentions were reflected at the time he created the computer entry and when he reviewed the document on the day he died…
Thus, although the deceased’s words are noncompliant with the provisions in WESA, I conclude that it was the deceased’s testamentary intention that his estate should be divided by “A 5 – way split for remaining brother and sisters.”
I order that the document prepared by Mr. Hubschi will be fully effective as though it had been made as the testamentary intention of Mr. Hubschi and that probate of the will be granted to Gregory Kenneth Stack on the basis each of the Stack children will receive a one-fifth interest in his estate.
It should be noted that, at present, the governing legislation in Ontario is significantly different than in British Columbia. In Ontario, laws would not allow the judge the discretion to make a decision like this. Ontario is a “strict compliance” jurisdiction, and the note left by the deceased on his computer would not be a valid will. In Ontario, the result would have been an intestacy. Then the Office of Public Guardian and Trustee of Ontario would likely distribute the estate to the legal heirs in Switzerland. This was clearly not the result the deceased had intended as he had been given for adoption by his mother at birth and had no contact with his blood relations in Switzerland. It was his foster siblings who he had lived with all of his life, and he wanted to leave his estate to them on his death.
In this particular case, it would appear that the discretion provided by the “substantial compliance” legislation in British Columbia has resulted in a more just result than that of Ontario’s “strict compliance” legislation.
Thank you for reading!
On Thursday August 6, 2020 there was a town hall discussion with the Province of Ontario Attorney General, Doug Downey. Part of his virtual discussion with members of the bar included the topic of allowing courts in Ontario greater latitude in validating or rectifying an improperly prepared will in Ontario.
Currently, in Ontario, a person making a will is required to meet all of the legislated formalities relating to the making of a will, known as “strict compliance”. If there is an error in complying with the requirements of the legislation, then the will is not valid. At present, the law in Ontario does not give a judge options to correct the error, even if the will was entirely correct otherwise, known as “substantial compliance”.
As the entire country is now attempting to make appropriate changes necessitated by the coronavirus pandemic emergency it is useful to take a look at what other provinces have done and are proposing to do.
In British Columbia, Section 58 (2) of Wills Estates and Succession Act provides the power for the court to make corrections where: On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents (a) the testamentary intentions of a deceased person, (b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or (c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
Further in Section 58 (3) of the Wills Estates and Succession Act: Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made (a) as the will or part of the will of the deceased person, (b) as a revocation, alteration or revival of a will of the deceased person, or (c) as the testamentary intention of the deceased person.
Is it time for Ontario to consider making the change from a “strict compliance” to a “substantial compliance” regime for wills legislation? On Thursday August 6, 2020 the Attorney General of Ontario, Doug Downey, was part of a virtual town hall discussion on the merits of such possible changes.
Thank you for reading!
On Thursday August 6, 2020 the Province of Ontario Attorney General, Doug Downey, was part of a virtual discussion with members of the bar regarding legal policy and possible legislative changes. One of the topics was whether to make permanent the provisions of the coronavirus pandemic emergency order for witnessing of Wills and Powers of Attorney virtually, utilizing electronic means.
Similar discussions are taking place across Canada as a consequence of the coronavirus emergency and measures requiring action by the government. In the Province of British Columbia Attorney General, David Eby, introduced Bill 21 on June 22, 2020 called the Wills, Estates and Succession Amendment Act, 2020. The proposed British Columbia legislation would make permanent the provisions on virtual witnessing of wills and goes further to allow electronic wills. The British Columbia government states: “The changes will benefit British Columbians who, for example, have a disability, are quarantined, live in rural or remote communities, or would have difficulty attending a lawyer’s or notary’s office due to child care or other responsibilities.” The changes: “will enable the courts to accept wills that are created on a computer and signed electronically, and for which there is no printed copy.” The proposed British Columbia legislation includes:
“electronic form”, in relation to an electronic will, means a form that (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of being reproduced in a visible form;
“electronic signature” means information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record;
“electronic will” means a will that is in electronic form.
The proposed draft legislation in entirety can be read here.
This is now a rapidly changing area of the law. There will certainly be more developments across Canada that we will be following for you.
Thank you for reading!
A wave of changes in how wills can be signed is sweeping over the legal profession with the force of a tsunami in the last month. While there is still momentum for change, why not include other areas of estate law like an online mechanism to search for unclaimed estate assets. Now is the time to do it.
In the United Kingdom the government posts a weekly list of estates with unclaimed property in those cases where the responsible local authorities were unable to find the legal heirs of estates. It is known as the “Bono Vacantia “ list, and it also provides instructions on making claims where someone has died and not left a will, or where family could not be located.
This publicly available list works well and is similar to the Bank of Canada’s online list of bank accounts with unclaimed balances that can be found here.
In Ontario, there is no publicly available system in place for unclaimed property, or for provincially regulated financial institutions like credit unions, or for estates with unknown heirs. There have been attempts in the past, but, legislation was never put into force. Other provinces, like British Columbia, do have systems in place. In Ontario, if the Office of Public Guardian and Trustee does not locate the beneficiaries of an estate then the money will remain unclaimed. There is no way for a beneficiary to search online for inheritance assets that they might be legally entitled to receive.
The current wave of changes in estate law forced by the pandemic also creates opportunities for further changes – why not do it now?
For more information on unclaimed assets please see:
Thanks for reading.
A recent decision out of Alberta on holograph wills is interesting. The Alberta Court of Queen’s Bench decision released on February 20, 2020 in Edmonton in the Estate of Dalla Lana, 2020 ABQB 135 starts with the following :
“Mr. Dalla Lana made a will in 1997. On March 1, 2018 (four days before he died) and via notes made on two sticky notes, he made what he described as “changes to my earlier will”. The “changes” if valid, effectively rewrote the entire will.”
The decision then goes on to find that the “two sticky notes” were a valid will. This was one more decision in a long line of cases (in substantial compliance jurisdictions, unlike Ontario) with wills being upheld when written on everything from napkins to tractor fenders.
If a valid will can be done on a sticky note, one should ask is there any reason now why an electronic will could not be done on an iPad or smartphone?
Pandemic emergency Orders in Ontario have recently accepted wills being signed and witnessed by video conference or by counterpart. However, there is still a requirement for a “hard copy” of the will. A purely electronic will with a digital signature is still not permissible.
Some jurisdictions have already allowed electronic wills into probate. In Australia, the High Court of Queensland gave probate to a will in 2013 contained in the iPad of the deceased, in Yu Estate 2013 QSC 322.
Although digital electronic signatures have been allowed in Ontario for use in some business situations for many years, there are some restrictions on doing electronic will signatures which are found in the Electronic Commerce Act, 2000, SO 2000, c 17,
31 (1) This Act does not apply to the following documents:
- Wills and codicils.
- Trusts created by wills or codicils.
- Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care.
Given the emergency statutory provisions triggered by the pandemic, it seems inevitable that a meaningful debate will soon ensue about the merits of electronic wills and the broader question of whether Ontario should adopt substantial compliance in its estates legislation.
Thanks for reading.
Please enjoy these blogs on the subject:
Video conferencing has been around for about forty years. It has been used in criminal court bail hearings and on applications to the Supreme Court of Canada for more than thirty years in some parts of the country. There are many good reasons to now expand the use of video and other technology in the law of wills and estates. The technology “Genie” is now out of the legislative bottle it has been kept in for too long, and it is not likely to be put back in when this pandemic fully ends.
The changes made in the last month to how a will can be validly signed in Ontario have been made far more quickly than anyone expected. The substance of these changes has been dealt with in other Hull and Hull blogs. The Emergency Management and Civil Protection legislation in Ontario, and the Orders made pursuant to that legislation beginning on Tuesday March 17, 2020 have effectively amended past practice to such a degree that the usual caution of the legal profession has been surrendered. Wills can now be signed and witnessed over the internet. Counterpart signed wills are now allowed. Affidavits can be commissioned by video conference now. These and other changes have been made and implemented quickly, with effect to the core of basic principles. The legal profession in Ontario has not seen changes like this in the past one hundred years!
The changes are brought on by the circumstances of the current pandemic emergency and are necessary. It has been impressive to watch these changes being made so quickly. Immense credit is due to those involved. Led by the Attorney General of Ontario, Doug Downey, and with the Deputy Minister, lawyers at the Ministry, members of the Estate Bar, and others, they have all truly done monumental work. On Monday May 4, 2020 a notice was posted on the Ontario Court of Justice website that included the following statement that the Court would be, “…working closely with its justice partners, including the Ministry of the Attorney General, to adopt technology that will increase participants’ ability to access the Court’s services using remote means, such as by the electronic filing of court material, remote scheduling processes, and remote hearings.”
It is interesting to ask however, while changes were happening incrementally in other areas of the law over many years, why was there no progress in the area of execution of wills? It is important to also ask what further changes should be made at this time. For many lawyers the recent storm of events and the subsequent changes are anxiety making. Nevertheless, this is the time further permanent changes should be considered. What should be of interest now is how technology can be used to benefit all going forward. Before the timing of the window for change closes this should become an important discussion among estate lawyers.
Thank you for reading.
These blog posts on the subject may also be of interest:
This Sunday February 16, 2020 the NBA All-Star game will be played in Chicago. It is estimated that seven million people will watch that one game, and that about 450 million people are involved with basketball around the world annually. Forbes magazine has estimated the value of the 30 NBA teams at over 50 billion dollars with the Toronto Raptors valued at 1.7 billion.
On December 21, 1891 the game of basketball was invented by Canadian James Naismith. He was born on November 6, 1861 in Almonte Ontario about 50 kilometers west of Ottawa. Yet, the inventor of the game, James Naismith, never profited from any of this. In fact, he was generally in favour of advancing good values through sport and not profit. His estate did not profit either. However, his original two-page rules of the game of “Basket Ball” from 1891 were passed down to his family.
On December 10, 2010 the rules were purchased at Sotheby’s auction for a record 4.3 million dollars by David and Suzanne Booth. The couple then donated the original rules of the game of “Basket Ball” to the University of Kansas, where James Naismith had been director of athletics until retiring in 1937 at the age of 76. He died on November 28, 1939 at his home in Lawrence Kansas. The family heirs of James Naismith took the proceeds from the sale of the original rules and donated the money to the Naismith International Basketball Foundation charitable organization.
A notable legacy in a succession of events. The game of life played well, starting with James Naismith, then David and Suzanne Booth, and then the family and heirs of James Naismith!
Enjoy the game!
What do you do as a lawyer when you represent someone who is waiting to receive money from an estate, but the Estate Trustee will not pay? An interim distribution can commonly be made. The Estate Trustee can hold back some of the funds for potential liabilities and distribute some of the money immediately. Potential liabilities can involve delayed tax filings related to Canada Revenue Agency (CRA) procedures being slow, or other estate liabilities. Final distribution can be delayed for a matter of 2-3 years, or even longer. As an example, on a $1,000,000 estate, the hold back might be $200,000 on $50,000 of estate liabilities that are known or can be knowledgeably estimated. This safely leaves $800,000 for immediate interim distribution, without waiting years until concluding administration of the estate. However, the practice of the Office of Public Guardian and Trustee (OPGT) in Ontario is not to do interim distributions. They take the position that even if there is the remotest potential for liability they will not take the risk. As a government entity there is certainly no incentive to take any risk. The following rhetorical question illustrates the problem – What civil servant in a bureaucratic government agency is going to move quickly to take on liability and risk?
A recent decision clearly directs the Office of Public Guardian and Trustee (OPGT) of Ontario to make an immediate interim distribution as Estate Trustee.
It is unfortunate, in my view, that anyone would have to take steps to seek an Order in these circumstances. This is what happened in Foundation for Human Development and Jack Benson v The Estate of Keith Irwin-Reekie, 2020 ONSC 299, with the decision released on January 15, 2020. The court directed an interim distribution by the OPGT, to distribute the inheritance to which the moving parties were entitled. The court found that it was appropriate to exercise discretion under rule 74.15 (1) (i) “Orders for Assistance” of the Rules of Civil Procedure, Courts of Justice Act. The reasoning was that it was usual practice for estate trustees to make interim distributions out of estates, “once the Estate Trustee has a good understanding of the taxes and other liabilities of the estate, holding back sufficient funds in the estate to satisfy those expenses / liabilities”.
Thanks for reading!
America’s Top Forty show was hosted for decades by Casey Kasem and was one of the top radio shows in the world. Casey was born Kemal Amin Kasem in Detroit on April 27, 1932 to Lebanese immigrant parents who worked as grocers. He succeeded on radio and also did other work like voice roles in cartoons like “Shaggy” on Scooby-Doo. When he died on June 15, 2014 at age 82 his estate was reported to be valued at over $ 80 million USD.
After his death, three children from his first marriage were involved in what can only be described as a very sad dispute with his second wife that went on for over 5 years. The dispute was recently reported to have been settled in December 2019. This, in my view, is another example of what goes wrong when proper estate planning is not considered by parents/spouses/children. The ensuing consequences are often unfortunate and can be played out, in large part, in the courts. There is too much to the Casey Kasem story for this blog but, the story involves his dementia from Lewy Body Disease, one of the most common progressive dementia’s after Alzheimer’s. It involves his disappearance and a Los Angeles court declaring him a missing person on May 12, 2014. It involves his not being buried for six months after he died and then being buried in Oslo Norway for some reason on December 16, 2014. For more on this story I suggest the article by Amy Wallace entitled “The Long, Strange Purgatory of Casey Kasem”.
Thanks for reading!
Some basic questions to get you thinking about starting a will with a surviving spouse scenario:
- Everything to spouse Absolute (no strings attached)?
- Some or all assets held in a Spousal Trust (some conditions will apply) ?
- An amount immediately to children with the balance to the spouse Absolute?
For lawyers – the Hull e-State Planner is a tool for making wills and has been called “the future of will planning”. To book your free demo today email to email@example.com
Thanks for reading,
If this blog is interesting, please consider these other related resources: