Author: Kira Domratchev

11 Nov

Can there be unexpected financial consequences of retroactive proof of death?

Kira Domratchev Estate Litigation Tags: , 0 Comments

In Threlfall v. Carleton University, the Supreme Court of Canada held that a deceased’s estate must repay pension payments received post-death. Although paying back a windfall seems like a common-sense outcome that would not require the analysis of the highest court in Canada, the 50-page 6/3 split-decision tells us it is not as simple as one would think.

In this case, Mr. George Roseme (“R”), a retired Carleton University professor who was suffering from Alzheimer’s disease, disappeared from his home in Quebec in 2007 after going for a walk. R’s remains were not found until almost six years later. During that passage of time, pension payments he had been receiving from the University at the time of his disappearance continued to be paid. Notably, the University did attempt to cease payments within a year or two after R disappeared, but R’s surviving spouse objected, since under the Quebec Civil Code one is presumed to be alive for seven years unless proof of death is obtained. The University reluctantly continued the payments.

After discovery of R’s death in 2013, and a determination that he died just one day after his disappearance in 2007, the University sought to recover the overpayment from R’s estate and surviving spouse. It was successful throughout. The Supreme Court of Canada decision, although lengthy and multifaceted, seemed to largely turn on the following findings:

  • On the plain language of the pension plan, benefits were to end upon R’s actual death, not the date that it was discovered or officially recognized;
  • The rebuttal of the presumption of life must be assessed retroactively, meaning that payments should only continue during lifetime. Given R’s date of death, this extinguished the entitlement to the pension payments made while R was an absentee. A prospective approach to the rebuttal of the presumption of life would generate a windfall not intended by the absence regime; and
  • The payments were treated, with a retrospective view, as having been made in error, which obliges the recipient to make restitution.

The impact of the decision is weighty, with R’s surviving spouse being required to reimburse the University almost $500,000 in pension payments.

Considering this from the Ontario perspective, I look to the Declarations of Death Act. In this statute, once the seven-year absentee period expires, an application seeking a declaration of death can be brought. I note, though, that the Act contains provisions permitting the court to amend or revoke the order, as well as to make orders regarding the preservation or return of property.  So if you find yourself in the unique circumstance of receiving assets post-absenteeism, perhaps setting them aside would be a good idea, because when things seem too good to be true, they usually are.

Thanks for reading,

Natalia Angelini

P.S. A good summary article can be found here. Our blogs below also touch on some intriguing declaration of death cases:

https://hullandhull.com/2017/10/doppelgangers-declarations-death-act/

https://hullandhull.com/2014/03/premature-declarations-of-death/

https://hullandhull.com/2007/12/interest-not-payable-on-insurance-proceeds-until-declaration-of-death/

31 Oct

In the News: Medical Assistance in Dying for Persons with Dementia

Kira Domratchev In the News Tags: , , 0 Comments

As many of us know, the federal government’s legislation on medical assistance in dying (“MAID”) – Bill C-14 – was passed on June 17, 2016.

Only physicians and nurse practitioners (in certain provinces) are permitted to provide MAID in two ways:

1) directly administer the substance that causes death (e.g. an injection of a drug); or

2) provide or prescribe a drug that is self-administered to cause death.

In order to be eligible for MAID, one must meet all of the following criteria:

  • be eligible for publicly-funded health services in Canada;
  • be at least 18 years of age and capable of making their own health care decisions [emphasis added];
  • have a grievous or irremediable medical condition;
  • make a voluntary request for MAID; and
  • give consent to receive MAID after being provided with all of the information necessary to make the decision.

For more information on MAID, please see the Government of Canada’s webpage on “Medical Assistance in Dying”.

Dr. Stefanie Green, in a recent British Columbia case, said that a person with dementia who meets the criteria, should be eligible for MAID, despite the previously widespread assumption that persons with dementia could not meet the eligibility requirements.

Mr. Gayle Garlock became one of the first Canadians with a dementia diagnosis publicly reported to have received MAID. The key issue in deciding whether a person is eligible for MAID, particularly in the case of a person with dementia, is asking whether they have the mental capacity for informed consent, intolerable suffering and a foreseeable death.

In Mr. Garlock’s case, he was diagnosed with Lewy body dementia in 2014, when he was 70 years old. According to Mr. Garlock’s wife, one of the losses that he would define as “intolerable suffering” was being unable to read.

By the spring of 2019, Mr. Garlock’s condition had deteriorated such that his mental processing had slowed and he struggled in conversation. Dr. Green, determined that he still knew what was going on around him and with him and that he understood that he had dementia and that it had progressed. His MAID application was approved on May 9, 2019. Mr. Garlock passed away peacefully with his wife and sons at his bedside.

According to Dr. Green, “This is not an expansion of our law…This is a maturing of the understanding of what we’re doing”.

This is important news to those persons suffering with dementia but is also a reminder to the medical community of the importance of approaching each case individually and carefully, particularly where a patient’s capacity may be in question.

To learn more about Mr. Garlock’s story, please see CBC’s recent article here.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Achieving Medically Assisted Death

Assisted dying – follow the rules and you’ll be fine

An Update on Medical Assistance in Dying

29 Oct

The Works: Res Judicata, Collateral Attack and Abuse of Process – Reasons for Dismissal

Kira Domratchev Litigation Tags: , , 0 Comments

The Ontario Court of Appeal recently upheld a motion judge’s decision striking a Statement of Claim and dismissing an action on the basis that it was (i) res judicata, (ii) a collateral attack on a previous order of the Court and (iii) an abuse of process.

The Appellant in the matter of Wright v Urbanek, 2019 ONCA 823, sought to challenge the validity of a family trust that was established in connection with an estate freeze involving a company that the Appellant and his late wife instituted in 2007.

The action was commenced by the Appellant four days after losing his daughter’s oppression application which resulted in his removal as trustee of the family trust and as director and officer of the company.

The motions judge found that having lost the oppression application, the Appellant sought to advance “a new and inconsistent theory” which could have been sought as part of the application itself.

The Court of Appeal agreed with the motions judge such that the cause of action challenging the validity of the family trust was known to the appellant and could have been pursued in the oppression application. In fact, the Appellant seemed to be questioning the validity of the family trust in his factum and did not ultimately pursue this theory in the application.

The Court of Appeal held that a challenge to the validity of the family trust would now interfere with the implementation of the Order in respect of the application which was upheld on appeal. It was further held that raising this issue would essentially involve re-litigating the application and would be a “misuse of the court’s procedures in a way that would bring the administration of justice into disrepute”.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

The Doctrine of Abuse of Process

Cost Award for Successful Motion for Summary Judgment

Peering behind the Curtain: Costs against Non-Parties

28 Oct

A Limited Grant….What’s That All About?

Kira Domratchev Estate & Trust, Executors and Trustees, Trustees Tags: , , 0 Comments

We all know how long an Estate Trustee typically has to wait for a Certificate of Appointment of Estate Trustee With or Without a Will, if filed in Toronto. Sometimes a Certificate of Appointment is not granted for six to eight months from the filing date.

The Court recently expressed its frustration with the frequency of motions being commenced by Estate Trustees seeking to expedite the granting of the Certificate of Appointment. The option of obtaining the Certificate of Appointment on a more urgent basis appears to no longer be available as a result. Apparently, it was not unusual for Estate Trustees to seek to expedite the process when real property of an Estate needed to be sold. The Court does not always agree that the sale of real property cannot wait until the Certificate of Appointment is granted.

Despite the Court’s stance on expediting the granting of Certificates of Appointment, there are special circumstances that would arguably warrant the Court’s intervention. What if an Estate Trustee’s authority is required to manage a certain asset of an Estate such that, if it is not obtained within a reasonable amount of time, the Estate could suffer significant expense?

An option that is available which should be carefully considered (particularly given the Court’s position on expediting the process overall) is seeking a limited grant from the Court for a particular purpose. Historically, this was known as a grant ad colligenda bona, and was limited to particular purposes as well as limited until such time as a general grant could be made (see Charles H. Widdifield, Surrogate Court Practice and Procedure, 2nd ed. (Toronto: Carswell, 1930) at 190).

Today, where the conditions for an appointment of an Estate Trustee During Litigation are not met, and there is a delay in the appointment of an Estate Trustee, a limited grant for the purpose of gathering in and protecting the assets may be sought by way of a motion or application for directions under Rule 75.06 of the Rules of Civil Procedure (see Ian M. Hull & Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Carswell, 2016) at 384).

This option should be carefully considered where the circumstances are truly special such that the Court’s intervention is required on an urgent basis and the Estate Trustee cannot wait until the Certificate of Appointment is granted.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Limited Grants: Jurisdiction

Limited Grants Continued and Alterations in Grants

Limited Grants: Multiple Wills? Yes. One Will? No.

01 Aug

An Eye Test to Diagnose Alzheimer’s?

Kira Domratchev General Interest, Health / Medical Tags: , , , , 0 Comments

My colleague, Sayuri Kagami, recently blogged on the Introduction of National Dementia Strategy.

Canada, as most people will know, has an aging population and the issue of dementia has become more and more prevalent over the years, as it affects the ability of those afflicted, to live and function independently.

A strategy to address this problem is important given the statistics, however, another interesting aspect of this live issue is the work being done to develop a means of preventing and minimizing the impact of this disease on people in the future.

Dr. Rosanna Olsen is the leader and director of the Olsen Lab and a scientist at the Rotman Research Institute (RRI) at Baycrest as well as an Assistant Professor at the University of Toronto.

Dr. Olsen noted that early detection of dementia is important for effective treatment of the disease. Given that no test can currently detect dementia before the onset of symptoms, Dr. Olsen has undertaken research that will help in the development of non-invasive and cost-effective eye-tracking tests that will identify those at risk of dementia before the onset of the symptoms.

Dr. Olsen will receive $546,975.00 over five years for her work in establishing a set of new eye-tracking and brain-imaging biomarkers that will assist in the earlier detection of Alzheimer’s disease.

I, for one, am very interested in seeing the results of this study and how they may impact the detection of Alzheimer’s disease in the future.

If you are interested in learning more about Dr. Olsen’s efforts in this area, please take a look at the Olsen Lab website or the Baycrest article that speaks about her research.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Six Proven Ways to Prevent Dementia

New Model of Care for Those with Dementia Coming to Canada

Dementia Care and Robots

29 Jul

Who’s an Heir Under the Laws of Intestacy in Ontario?

Kira Domratchev Estate & Trust Tags: , , , , , 0 Comments

Most people know that if a person dies without a Will, the laws of intestacy govern the division of his or her estate. Specifically, it is Part II of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA“) that is titled “Intestate Succession” that comes into play.

The question of who inherits where there is no Will is easily answered in some of the following scenarios:

  • Where there is a surviving spouse (limited to married spouses, by the way), said spouse is entitled to the entirety of the property of the deceased (section 45(1));
  • Where there is a surviving spouse and one child, spouse receives a preferential share of the estate of the deceased (i.e. $200,000.00 as of today) and if anything is left over, it is divided equally between spouse and child (section 46(1));
  • Where there is a surviving spouse and two or more children, the spouse is entitled to a preferential share of the estate of the deceased and 1/3 of what is left over. The remainder is then divided between the issue of the deceased (section 46(2)).

The SLRA further addresses how the division of assets is to take place where the only surviving relatives are parents, brothers and sisters and nieces and nephews (in respective order of preference). If the deceased has no surviving parents, brother/sisters or nieces/nephews, the next of kin provision (section 47(6)) applies.

Despite the fact that the SLRA attempts to bring clarity to the division of one’s intestate estate, it appears that certain situations may arise that would lead to confusion, absent case law that would provide some guidance.

In Farmer Estate v Karabin Estate, an executor of a niece who predeceased the deceased commenced an application in respect of her alleged share in the estate of the deceased. The Ontario Court of Appeal found that the SLRA is confined to nieces or nephews who do not predecease the deceased and does not extend to more remote issue. The Court of Appeal relied on section 47(4) of the SLRA which is worded as follows:

“Where a person dies intestate in respect of property and there is no surviving spouses, issue or parent, the property shall be distributed among the surviving brothers and sisters of the intestate equally, and if any brother or sister predeceases the intestate, the share of the deceased brother or sister shall be distributed among his or her children equally.” [emphasis added]

In interpreting this provision, the Court relied on the definitions of “child” and “issue” as defined in the SLRA, namely the definition of “child” includes a child conceived before and born alive after the parent’s death and the definition of “issue” includes a descendant conceived before and alive after the person’s death.

In another matter, Kiehn v Murdoch, the Ontario Superior Court of Justice found that grandnieces and grandnephews are excluded from sharing in the estate of a deceased by operation of section 47(4).

Unfortunately in the circumstances where a particular scenario arises that has not been clearly addressed by the SLRA and subsequent case law, an application for directions may need to be commenced to receive some clarity from the Court as to how a particular intestate estate is to be divided.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Common Law Spouses in Ontario and Intestacy

Intestate Estates and Mortgage Insurance

Does exclusion of family as beneficiaries of your estate preclude intestate succession?

16 Jul

Retrospective Capacity Assessments: Yay or Nay?

Kira Domratchev Capacity, Estate & Trust, Estate Litigation Tags: , , , , , , , , , , , , 0 Comments

The Ontario Superior Court of Justice recently made an important ruling on a voir dire in respect of Dr. Kenneth Shulman’s proposed expert testimony.

This ruling will be of particular interest to estate litigators as it addresses the inherent admissibility of retrospective capacity assessments, amongst other things.

The Court in this instance implemented a form of blended voir dire, wherein Dr. Shulman’s evidence would be received in its entirety and submissions would be made on the issue of admissibility of the expert testimony. In the event that the Court ruled that Dr. Shulman’s evidence was admissible, the evidence obtained during the voir dire would be incorporated as part of the trial record.

The Defendant, amongst other objections, took issue with Dr. Shulman’s testimony on the basis that his testimony was based on a retrospective capacity assessment which was problematic for the following reasons:

  • The proposed opinion was based on hearsay evidence and must therefore be excluded; and
  • Expert opinion evidence on retrospective testamentary capacity assessments constitutes novel or contested science and is therefore not reliable.

The Court did not accept that Dr. Shulman’s use of certain evidence that has not been proven, and has not been relied upon him for the truth of its contents, prevents the Court from admitting his expert opinion evidence at the threshold admissibility stage. In other words, any such issues could be addressed in reference to the weight of the proposed evidence.

Most interestingly, however, the Court noted that many of the types of medical and psychiatric opinions offered at trial are retrospective in nature and did not agree that retrospective capacity assessments are novel in Ontario courts. The Court specifically noted that the Defendant was unable to identify a single case, since retrospective testamentary capacity assessments were first considered by the courts, in which psychiatric expert opinion of retrospective testamentary capacity assessment has been ruled inadmissible.

In applying the admissibility test established in R v Abbey 2017 ONCA 640, the Court held that Dr. Shulman’s expert opinion satisfied the threshold requirement in the first step. In weighing the cost versus benefit of admitting Dr. Shulman’s report, the Court found that the evidence favoured the admission of Dr. Shulman’s evidence.

The Court made a ruling admitting Dr. Shulman as an expert geriatric psychiatrist to provide expert opinion evidence in the areas of geriatric psychiatry and retrospective testamentary capacity assessment.

This is an important ruling in the context of estate litigation given that in most instances, the capacity assessments that are usually relied on in the course of litigation are of a retrospective nature, since the subject of the assessment is most often deceased.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Expert “Hot-tubbing” and Its Use in Will Challenges

Psychological Autopsies and Testamentary Capacity

The Search for Contemporary Values: A Moving Target

 

29 Apr

Estate Information Returns: What’s That All About?

Kira Domratchev Estate & Trust, Executors and Trustees, Trustees Tags: , , , , , , 0 Comments

Were you recently appointed as Estate Trustee and needed to obtain a Certificate of Appointment of Estate Trustee (otherwise known as “probate”)? In that case, you need to know that an Estate Information Return must be filed with the Ministry of Finance within 90 days of the date of the appointment, setting out the assets in the Estate and their corresponding date of death values.

Typically when an Application for Certificate of Appointment is filed with the Court, a trustee may not have access to every asset of the Estate such that that the value of the Estate may not necessarily be accurate.

As a result, when an Estate Information Return is filed following the Certificate of Appointment being granted, all of the assets of the Estate must be listed. Depending on the values of the assets as confirmed by the trustee following the Certificate of Appointment being granted, a refund may be issued in the event that Estate Administration Tax was overpaid or additional tax may be payable in the event that the value of the assets as listed on the Application is lower than what was listed on the Estate Information Return.

The Estate Information Return may be audited by the Ministry of Finance for up to four years after it is filed. As such, it is important to retain all relevant records in the event of such an eventuality. Another important consideration is that the Ministry of Finance will not typically provide confirmation of receipt of an Estate Information Return so it is prudent to send it via means that would provide you with confirmation of delivery such as fax.

Finally, if a trustee finds out any additional information regarding the value of the assets of the Estate that has any bearing on the Estate Administration Tax payable, an amended Estate Information Return must be filed within 30 days of the new information being uncovered.

Thanks for reading!

Kira Domratchev

Find this post interesting? Please consider these other related posts:

File Your Estate Information Return On Time

The Estate Information Return and Multiple Wills

Hull on Estates #468 – Personal Property, Digital Assets and the Estate Information Return

22 Apr

Ante-Mortem Probate: What’s That All About?

Kira Domratchev Estate & Trust, Estate Planning, General Interest, Litigation, Wills Tags: , , , , 0 Comments

Ante-Mortem Probate, or Pre-Death Probate, is a process of probate which validates the Will of a testator during his or her lifetime and may be particularly useful for testators who fear that their Will may be subject to a challenge following their death.

Various models of Ante-Mortem Probate have been explored in the past by American scholars and include the following proposed models:

  • The “Contest Model”, reviewed by Professor Howard Fink, is where each of the beneficiaries are identified, including those that would benefit on an intestacy and the testator essentially becomes the moving party in his or her own suit against all possible beneficiaries of his or her Estate. [Antemortem Probate Revisited: Can an Idea Have a Life After Death? (1976) 37 Ohio St LJ 264]

 

  • The “Conservatorship Model”, explored by Professor John H. Langbein, is where the testator is required to apply to the Court in a manner similar to the “Contest Model”, however, instead of each of the specific beneficiaries being involved, a Guardian Ad Litem (Conservator) represents the interest of all potential beneficiaries, including any unborn or unascertained beneficiaries. [Living Probate: the Conservatorship Model (1980)]

 

  • The “Administrative Model”, set out by Professor Gregory S. Alexander and Albert M. Pearson is neither judicial nor adversarial. There is no requirement of notice to the beneficiaries or in fact “interested parties” as one of the significant concerns with the other models of Ante-Mortem Probate is the confidentiality of the testator. [Alternative Models of Antemortem Probate and Procedural Process Limitations on Succession (1979-1980) 78 Mich L Rev 89]

Only certain American States allow Ante-Mortem Probate, whereas Canada does not have any provinces or territories with a similar arrangement.

Given the number of suits that are commenced following the death of testators across Canada, such an arrangement could be beneficial in that at the very least, a testator who expects that there will be a challenge to his or her Estate plan could take an active part in adjudicating whether his or her Will is indeed, valid.

Considering the complicated familial arrangements that are often present in our society today, perhaps addressing challenges of things like capacity of the testator, undue influence or the presence of suspicious circumstances would make more sense before the testator’s death. This is particularly an issue where a testator’s capacity had been in question for a while and the Will being challenged was executed a decade or more before death.

There are, of course, certain potential negative effects of any Ante-Mortem Probate regime, particularly the possibility that it would encourage litigation that would not otherwise arise, following the death of the testator.

Thanks for reading!

Kira Domratchev

Find this post interesting? Please consider these other related posts:

Probate and Wills: What About Electronic Wills?

The High Cost of Probate

When is Probate of a Will Required in Ontario?

15 Apr

Legal vs. Beneficial Ownership: British Columbia’s New Registry

Kira Domratchev Estate & Trust, In the News, News & Events Tags: , , 0 Comments

Any estate litigator will tell you that many of the cases that we deal with on a daily bases involve disputes regarding the beneficial ownership of assets, being jointly held assets or assets that are wholly owned by one party and alleged to be beneficially owned by another.

For reference, legal ownership or legal title refers to property held in the name of a person or persons. In contrast, beneficial ownership is what is referred to as “actual” ownership even though the property is registered in someone else’s name.

Without a clear trust agreement, it is often very difficult to argue that beneficial ownership exists and the parties to the dispute will resort to arguments over things like, who is paying taxes for the property, who is collecting rental income and other evidence that relates to the parties’ intention.

The Province of British Columbia appears to have come up with a solution to the question of whether the specific property truly belongs to the person in whose name it is registered.

The Land Owner Transparency Act has been introduced to create a public registry of property owners in the province. Notably, this is the first legislation of its kind in Canada and is aimed towards ending the use of trusts, corporations and partnerships to shield transactions from public view.

The new legislation was positively received at Transparency International Canada whose executive director, James Cohen, noted that Canada has been criticized globally for our apparently lax beneficial ownership legislation.

In accordance with this legislation, corporations, trusts and partnerships that buy land would have to disclose their beneficial owners in the registry. It is interesting to note that failure to do so will result in fines of up to $100,000.00 or 15% of the assessed value of the property, whichever is greater.

The Society of Trust and Estate Practitioners (Canada) submitted certain concerns to the province such as questions of how the new framework is to work with other relevant legislation and raised questions of privacy.

Will Ontario follow suit? Stay tuned.

To learn more about this new initiative, check out this Globe and Mail article on the topic.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Legal vs. Beneficial Ownership – Not so easily distinguished?

The Beneficial Ownership of Shares in a Corporation

House Explosion Leading to Questions or Ownership and Ultimately, Responsibility Under the Law

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