Author: James Jacuta
The Ontario Superior Court of Justice decision released on December 8, 2020, in the Estate of Klaczkowski, deals with a number of issues including when the court should remove an Estate Trustee and appoint a litigation Trustee. Two brothers disagreed on matters related to their mother’s estate, including division of proceeds of a TD Trading Account, a commercial property, and a safety deposit box (with $32,000 in $1,000 dollar bills). They were named in the will as Estate Trustees and beneficiaries. Justice Leiper reviewed the following points in regard to the court appointment of an Estate Trustee During Litigation:
- Ordering the removal of an estate trustee is a decision not to be taken lightly and only where it is clearly necessary: Re Weil, 1961 CanLII 157 (ON CA),  O.R. 888 at 889 (C.A.)
- Friction between co-estate trustees may be a basis for a removal of both estate trustees where it impacts the decision-making process: Radford v. Wilkins (2008), 43 ETR (3d) 74, 2008 CanLII 45548 (S.C.J.) at paras 111-113;
- A failure to properly keep records resulting in the need to make corrective disclosure is an aggravating factor in considering whether a trustee ought to be removed. Similarly, failure to consult with co-trustees is significant. Graham v. Benton, 2020 ONSC 6985 at paras. 156-157;
- A testator’s choice of estate trustee should not be lightly interfered with, but the appointment of an ETDL is a “much less intrusive” remedy that exists where “parties’ duties as fiduciaries can be inconsistent with their ongoing litigation interests.” A court should consider the balance of convenience and, since the appointment of an ETDL is not an extraordinary remedy, “the court will favour appointment in the vast majority of cases unless the administration of the estate involved is particularly straightforward or simple”: Mayer v. Rubin, 2017 ONSC 3498 at paras. 24-36.
The Court ordered that –
- An Estate Trustee During Litigation will be appointed for the estate, and
- If the parties are unable to agree to the naming of the Estate Trustee During Litigation by February 1, 2021, they are to appear before March 1, 2021, to make submissions on an appropriate Estate Trustee During Litigation.
For more on Estate Trustees During Litigation please see the blog by Sydney Osmar: Appointing an Estate Trustee During Litigation.
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On December 7, 2020, the court decision in the Estate of Rezaee was released where a holograph will was later found in the winter coat of a friend and beneficiary. Facts from the decision include that the deceased, Kamran Rezaee was born on March 15, 1962, in Iran. He moved to Canada in 1983. Mr. Rezaee was diagnosed with pancreatic cancer and died on August 10, 2018. He had no family in Canada. His estate was valued at approximately $3.5 million at the time of the application.
On March 20, 2018, Kamran Rezaee attended a dinner party hosted by his friend, Mr. Naftchi to celebrate the Persian New Year. The dinner was attended by four other friends. At some point during the party, Mr. Naftchi testified that Mr. Rezaee wrote and signed in his own handwriting in Farsi a holograph will on a piece of paper. The writing has been translated as follows: “ I, Kamran Rezaee, hereby give all my wealth and property to my close friend Mr. Siamak Naftchi. (signed) Kamran Rezaee, March 20, 2018.” This paper was written and signed in front of all of the dinner guests. Mr. Naftchi testified that Mr. Rezaee wrote this holograph will knowing that he had terminal cancer. Mr. Rezaee had no family living in Canada, and his family in Iran were all deceased. After signing the will, Mr. Rezaee put the will in his pocket and went into Mr. Naftchi’s bedroom to take a nap, which he did every one or two hours due to his health. In November 2018, Mr. Naftchi found the holograph will in one of his own winter jackets. He believes that Mr. Rezaee put the will in the jacket pocket when he went to sleep in the bedroom on March 20, 2018. When Mr. Rezaee died, Mr. Naftchi made the necessary funeral arrangements and paid for the funeral. After obtaining a professional translation of the holograph will, Mr. Naftchi applied to the court for a Certificate of Appointment of an Estate Trustee with a Will.
It is interesting to note the steps that were required to be taken in this case by the Court. On June 18, 2019, the Court issued an endorsement requiring Mr. Naftchi to prove the holograph will “in solemn form in an open court” and that the court will require independent witnesses as to Mr. Rezaee’s handwriting and signature, and that the Public Guardian and Trustee shall be served with the application. The endorsement required Mr. Naftchi to notify Mr. Rezaee’s next of kin and serve them with all court documents. Mr. Naftchi was required to publish in a local newspaper and national newspaper, in Canada and Iran, as the next of kin may have rights. The Public Guardian and Trustee was served with all of the relevant material, and counsel appeared to advise that their office took no position on the relief sought.
Mr. Naftchi published advertisements in Canada and in order to have the notice published in a national newspaper in Iran, Mr. Naftchi retained a lawyer in Iran to file an application there, for issuance of an inheritance restriction certificate for the deceased. They certified that Mr. Rezaee did not have any legal heirs in Iran. The Court in Canada was also provided with: the affidavit of Arian Nida confirming that he was present when the holograph will was written and signed by Mr. Rezaee; the affidavit of Nahid Lebasi confirming that he was well acquainted with the deceased’s handwriting and believes that the holograph will and signature were in the handwriting of the deceased; and Mr. Naftchi was sworn as a witness and provided oral evidence in support of his application. Given that the proceeding was uncontested the Court also followed up with additional questions. It was then ordered that the holograph will of Kamran Rezaee, dated March 20, 2018, was a valid holograph will and was probated.
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As 2020 has come to a close, we all fervently hope that the coming year will be better than the last.
In that spirit of optimism, I have reflected on some resolutions as a lawyer.
- Improve Health – But, make it specific in some way. Like resolving to run in a 10k race later in the year.
- Sharpen Communication – Work to better client and colleague communication and consultation.
- Provide Recognition – It takes little effort to recognize the efforts of those around you, and to provide praise, and celebrate achievements.
- Finish CPD – Do those Continuing Professional Development hours early and before it becomes a worry.
- Get Organized – Attend to that one matter that you routinely avoid. Admit it. You have one.
- Manage Time – Make it specific in some way. Hold incoming emails until later in the day, instead of constantly interrupting workflow.
- Embrace New Technologies – It takes time and is anxiety making, but is usually a benefit. This is then followed by Cybersecurity nervousness.
- Seize the Future – Think about the future in a different way. Law and work itself have changed significantly in the last year. Such as working from home.
- Drink Less. The pandemic put an end to in-person networking, seminars, and social events but, this might be followed by more drinking. After the “Spanish Flu” it was the “Roaring Twenties”.
- Be Grateful – That the last year is over and although we all still have to be vigilant, this pandemic will end.
Studies have shown that only a small percentage of New Year’s resolutions actually get implemented! Good luck!
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In McAndrew Estate (Re), 2020 ABQB 614, Mr. Justice Nicholas Devlin starts his decision with reference to the late Patricia McAndrew’s three wills by saying: ”Her brother, supported by two of her children, asserts that her 2012 holograph will, is valid and should prevail. In the alternative, he advances a 2011 will, drafted with the aid of her solicitor. Her daughter Diane asserts that Ms. McAndrews lacked the capacity to execute either of the latter wills and that the holograph in particular was the product of undue influence. Consequently, she asks the Court to endorse Ms. McAndrew’s original 2005 will which, not surprisingly, leaves her the preponderance of the estate. On this familiar landscape of familial discord, the contest of wills is joined.”
The decision was released on October 14, 2020, in Calgary and is interesting for procedural and other reasons, but, the decision revolves around the issue of the deceased’s capacity. Justice Devlin’s decision reviews and reinforces current legal concepts and states, “…capacity is not a “bright line” or “threshold” question; rather, it is both time- and task-specific. A person who lacks capacity at some points in time may have other periods of lucidity. Further, a person may have the capacity to undertake some tasks, but not others.”
He reiterates from Scramstad v Stannard ABQB 1996 188 AR 23 at para 130: “In my view, it is important to keep in mind at all times the instruction contained in Goodfellow, to the effect that: just because a person’s mind and memory is not what it used to be, does not mean that such person lacks testamentary capacity; the test to determine testamentary capacity is not therefore one of certainty or satisfaction beyond a reasonable doubt. Rather, based on the authorities referred to, in my view the test is one that can be answered by a layman possessed of good common sense based on everyday experience and judged on a “balance of probabilities” that is: is it more probable than not, having regard to all of the evidence that a person at the time such person made his or her Will possessed or did not possess a disposing mind and memory to “clearly and discreetly judge, all those things, and all those circumstances, which enter into the nature of a rational, fair and just testament”.
He also adds, “… capacity in general, and testamentary capacity in particular, is a legal question, not a medical one. While medical evidence can and often does inform the legal assessment, such evidence is not necessarily determinative. In Stevens v Morrisroe, 2001 ABCA 195 at para 19, Picard JA stated: “Soundness of mind is a practical question and does not depend on scientific or medical definition. As Feeney said, supra, at p. 33 “Medical evidence is not required, not necessary nor necessarily conclusive when given. “
In this case, the decision was that the deceased had testamentary capacity and the 2012 holograph will was admitted to probate.
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Dunn Street is a familiar street in Toronto’s west end, named after John Henry Dunn (1792 – 1854) who was active in business and politics and was Receiver General of Upper Canada. His son, Lieutenant Alexander Roberts Dunn (1833 – 1868) was the first Canadian born recipient of the Victoria Cross. It was awarded for his bravery during the Charge of the Light Brigade on October 25, 1854, during the Battle of Balaclava in the Crimean War. His will was probated in England as recorded in the England and Wales National Probate Calendar, Index of Wills and Administrations, from March 21, 1871. It was granted to Rosa Douglas (Wife of John Douglas, a General in her Majesty’s Army) of 16 Queen Street May Fair in the county of Middlesex, who was named as a beneficiary.
Alexander Roberts Dunn died in 1868 while on Expedition to Abyssinia. He was killed in unusual circumstances and the location of his grave was not known. His grave was eventually found by Canadian Army Forces during their peacekeeping mission to Ethiopia in 1998-2000. “Found” is not entirely accurate, as they were led to his grave by a group of local children who knew they were from Canada. The Victoria Cross is the highest award that was previously awarded to individuals from Commonwealth countries. In 1993 Canada established its own Victoria Cross. Dunn’s Victoria Cross Medal has been kept for many years at Upper Canada College, which he attended. His sword is on display at the Canadian War Museum in Ottawa.
We shall remember them.
The Presidential election is in the news. Any linkage to wills and estate law would appear to be a difficult connection. Yet, the Last Will and Testament of the first President, George Washington, is interesting in several respects.
In his own orderly handwriting, the will shows the wisdom and depth of understanding his unique life experience gave him. It is a well thought out, personal, and intelligently written document, prepared by an obviously brilliant man who has taken caution to be humble. He prepared it on his own, or as he says, “… no professional character has been consulted, or has had any agency in the draught” of the will.
The will appoints executors, provides for the disposition of his estate, the care of his wife, the release of his slaves, charitable donations to orphans, and the support of education, among other testamentary instructions. George Washington was born on February 22, 1732, in Westmoreland County, Virginia, and died on December 14, 1799, at his home in Mount Vernon, Virginia. He had been the first President of the United States from April 30, 1789, to March 4, 1797.
It is interesting that the last paragraph of the will, written more than two hundred years ago, provides for an arbitration process:
“My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants each having the choice of one and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.”
His reference to the Supreme Court of the United States is also noteworthy. The court was created by Article III of the Constitution and was established by the 1st Congress through the Judiciary Act of 1789 consisting of the Chief Justice and five associate justices. The position of Chief Justice is the only position fixed by the Constitution. The number of justices is set by Congress and has been amended many times over more than two hundred and thirty years resulting in the current number of nine.
The complete text of the Last Will and Testament of George Washington can be found on many archival and historic websites. The original is housed in the safe of the Fairfax County Courthouse in Fairfax Virginia. It comprises 29 front and back handwritten pages and an additional 15 pages with a detailed property schedule.
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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.
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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.
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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.
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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:
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