Author: Kira Domratchev

27 Aug

Notice of Objection: Now What?

Kira Domratchev Estate Litigation, Executors and Trustees, Litigation Tags: , , , , , 0 Comments

A testator appointed you as Estate Trustee of an Estate and a beneficiary filed a Notice of Objection to your appointment. What to do?

Typically, a Notice of Objection to an appointment of an Estate Trustee means that their authority is challenged such that before the administration of the Estate can be addressed, the Notice of Objection must be resolved, first and foremost.

Whereas in the case of a Notice of Objection, the party having filed it, is likely to commence a court proceeding to substantiate his or her claims, that is not always the case. As such, there are a couple of things that an Estate Trustee can do to force the Objector to move forward, in order to ultimately address the resolution of the objection.

  1. File a Notice to Objector

In accordance with Rule 75.03(4), an Estate Trustee can serve a Notice to Objector and file it with proof of service with the Court.

If the Objector does not serve and file a Notice of Appearance within 20 days of being served with a Notice to Objector, the Estate Trustee’s Application for a Certificate of Appointment is to proceed as if the Notice of Objection had not been filed.

If a Notice of Appearance is served on the Estate Trustee, they have 30 days to bring a motion for directions before the Court and if they do not do so, the Objector may seek directions, as well.

Essentially, the effect of a Notice to Objector is forcing the Objector to commence a claim or else abandon his or her objections.

  1. Commence an Application or Motion to propound the testator’s Will

Another option that exists for an Estate Trustee is simply skipping the steps that would follow the service of a Notice to Objector and seeking the directions of the Court, in accordance with Rules 14.05 and 75.06 of the Rules of Civil Procedure.

In this case, the Estate Trustee becomes the party commencing a court proceeding such that the costs associated with such a step ought to be considered, before proceeding. It is important to note, however, that proceeding with the first option will not necessarily save on legal costs to be incurred, if the Objector ultimately proceeds with a claim.

The option that is selected by an Estate Trustee will depend on the circumstances of each individual case such that it is important to consult with a lawyer as to which option is best.

Thanks for reading!

Kira Domratchev

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

Another Will Challenge Threshold Case

Challenging Challenges

Requests for Notice of Commencement of Proceeding

25 Aug

Estate Information Returns: an Update

Kira Domratchev Estate & Trust Tags: , 0 Comments

I blogged about Estate Information Returns on April 29, 2019 and what they mean for a recently appointed Estate Trustee.

There have since been a few changes to the obligations of an Estate Trustee in connection with an Estate Information Return.

Whereas the Estate Information Return had to be filed with the Ministry of Finance within 90 calendar days after a Certificate of Appointment of Estate Trustee (with or without) a Will was issued, that requirement is changed to 180 days since January 1, 2020.

Another important change is that whereas before January 1, 2020, an Estate Trustee had to file an Amended Estate Information Return within 30 calendar days of becoming aware of any information submitted that was inaccurate or incomplete, that period was increased to 60 days.

Since January 1, 2020, there is also no Estate Administration Tax payable on the first $50,000.00 of the Estate assets. The Estate Administration Tax is paid on the basis of $15.00 for every thousand dollars of the remainder of the Estate assets (i.e. above and beyond $50,000.00).

These changes are important because they allow an Estate Trustee more time to investigate the nature of the Estate assets and provide as accurate information to the Ministry of Finance, as possible.

A helpful guide from the Ontario government in respect of Estate Information Returns and the issues surrounding them can be downloaded here.

Thanks for reading!

Kira Domratchev

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

The Estate Information Return and Multiple Wills

File Your Estate Information Return On Time

Estate Taxes and the 2019 Budget

 

24 Aug

Motions for Security for Costs in Estate Litigation

Kira Domratchev Estate Litigation, Litigation Tags: , , , 0 Comments

Motions for security for costs are means of ensuring that there is a sum in place to pay the defendant’s costs, should the defendant be entitled to costs. It is not a motion that is often brought, but it is typically considered when the plaintiff is not a resident of Ontario and there is concern that his or her case may not have merit.

Rules 56 and 61.06 of the Rules of Civil Procedure govern motions for security for costs. The test for obtaining security for costs is two-fold:

  1. The defendant must show that the plaintiff’s action or application fits into one of the categories specified in subrule 56.01(1) which include the following:

(a)  the plaintiff or applicant is ordinarily resident outside Ontario;

(b)  the plaintiff or applicant has another proceeding for the same relief pending in Ontario or elsewhere;

(c)  the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part;

(d)  the plaintiff or applicant is a corporation or a nominal plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;

(e)  there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; or

(f)  a statute entitles the defendant or respondent to security for costs.

  1. If the plaintiff’s action or application does fit into one of the above-noted categories, the plaintiff has the option of attempting to prove that it would be unjust to order security, because they are impecunious, and the claim has merit.

An interesting consideration in the context of estate litigation that needs to be addressed is the fact that the party commencing a proceeding is not always the “plaintiff” or “applicant”, as defined by Rule 56. For example, a party may be propounding a Will in response to a Notice of Objection in which case although the propounder is technically the Applicant, the claim is made by the Objector. This issue has been considered by the Courts:

  • In Vout v Hay [1995] 2 SCR 876, Justice Sopinka commented on this issue allowing the Court, on a motion for security for costs, to cast the challenger as the real “plaintiff” such that the propounder could indeed move for security for costs.
  • In Boutzios Estate, Re (2004), 5 ETR (3d) 51 (Ont SCJ), Justice Greer, exercised her discretion under section 131 of the Courts of Justice Act, to order for security for costs and did not address the question of who had the burden of proof and rebuttable presumptions, as section 131 allows the Court to award the costs of and incidental to a proceeding or a step in a proceeding against any party at any time.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Consider these other related posts:

Motions for Security for Costs: What are they and when are they used?

Short Circuiting the Frivolous Will Challenge

28 May

Is it an Emergency? Justice Myers Expresses His Concerns

Kira Domratchev Litigation Tags: , , 0 Comments

As many are aware, COVID-19 has not had a positive impact on the justice system. In accordance with the Notice to the Profession dated March 15, 2020, regular operations of the Superior Court of Justice were suspended, given the pandemic and only certain urgent and emergency matters were to be heard by the Superior Court of Justice.

Although since then a further update was provided wherein it was made clear that additional matters will be scheduled for a remote hearing by telephone or video conference or heard in writing, to the extent that your particular matter does not fall within the narrow exceptions currently in effect, the Court will consider whether it is urgent before scheduling a hearing.

Justice Myers commented on the question of whether a matter is urgent in a recent Endorsement and expressed his concern about the ability of the Court to offer services during this unprecedented time.

In the particular case at hand, the Applicant, sent application materials to the Court raising concerns about the upcoming closing of a pending real estate transaction and the possibility of a residential eviction. Justice Myers noted that this was done, knowing of the Chief Justice’s Order dated March 19, 2020, suspending residential evictions in Ontario.

Nevertheless, Justice Myers, via a handwritten Endorsement dated April 2, 2020, scheduled this proposed matter for a case conference, by finding that the urgency standard in the Notice to the Profession dated March 15, 2020 was met. Following the delivery of the Endorsement to counsel for the parties, the Court received a letter from the Respondent, containing submissions as to why the matter was not urgent and should not be scheduled for a hearing.

Justice Myers noted that the Court is now routinely receiving submissions on the issue of “urgency” both before and after the Court scheduled a matter for a hearing. Justice Myers further re-iterated the following:

  • The Notice to the Profession is a not a statute passed by the Legislature of Ontario;
  • Litigants and lawyers alike are asked “to recognize the exceptional times and to try and cooperate to avoid the need for Court proceedings where possible”;
  • Guidelines are provided for those who need to access the Court while they are not in full operation; and
  • Importantly, none of this affects the Court’s jurisdiction or the applicable rules of law such that scheduling is an administrative function of the Court.

In light of the above, Justice Myers made it clear that the scheduling of an “urgent” matter is not a legal determination and therefore there is no need or call for detailed submissions. His Honour further re-iterated that not only is it not required, but that it is not helpful and that it must stop.

In analyzing Justice Myers’ Endorsement, and given the circumstances surrounding COVID-19, it is important that counsel cooperate with one another and the Court in effectively moving matters forward with minimized impact on the parties and the justice system. We are all, after all, in this together.

Thanks for reading!

Kira Domratchev

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

Court Filings: Do Not Attend Court Houses Except on Urgent Matters

How Important is it to Provide Evidence of Urgency During COVID-19?

Filing probate applications during the COVID-19 pandemic

26 May

ONCA Orders Appeal to be Heard in Writing

Kira Domratchev Litigation Tags: , , , 0 Comments

The Ontario Court of Appeal recently addressed an appeal that was scheduled to be heard on April 16, 2020 which had to be adjourned sine die due to COVID-19. The full decision of 4352238 Canada Inc v SNC-Lavalin Group Inc, 2020 ONCA 303 can be found here.

During a case management conference before Justice L.B. Roberts, which was scheduled to determine how this matter was to proceed, the Appellant objected to the appeal proceeding in writing, as suggested by the Respondents. The argument that the Appellant relied on was that the Court would not have jurisdiction to hear an appeal in writing over a party’s objection. The Court disagreed.

In making such a decision, the Court confirmed as follows:

  1. The Court Has Jurisdiction to Order a Civil Appeal Heard in Writing
  • The Appellant’s argument that the Court has limited supervisory jurisdiction over its own process, restricted to governing administrative details was rejected. The Court held that it is well settled that its implicit or ancillary jurisdiction to manage its own process is broad. Case law was cited to support the Court’s position that it has “the jurisdiction to make any procedural order to prevent an abuse of process or to ensure the just and efficient administration of justice”.
  • The Court’s implicit powers include those that are “reasonably necessary” to accomplish the Court’s mandate and perform its intended function which arise by necessary implication even where there is no express statutory or common law authority to that effect.
  • The Courts of Justice Act and the Rules of Civil Procedure do not mandate the absolute right to an oral hearing of an appeal.
  • COVID-19 has created extraordinary circumstances to which all must adapt as best as possible.
  1. This Appeal Should Proceed in Writing
  • This matter arises as a result of the dismissal of an application for narrow declaratory relief which proceeded on a paper record. It concerns the interpretation of a clause in a contract within the context of relatively straightforward facts.
  • Further submissions are not foreclosed in that, if necessary, the panel has the option to seek further oral and written submissions.
  • There is no prejudice or unfairness to the Appellant by proceeding in writing but the potential prejudice to the Respondents by any further delay and the unnecessary strain on the Court system is evident.

It has been some time now that the judicial system highlighted the importance of written advocacy. Certainly, advocates today are aware of how important it is to their client’s case, regardless of whether an oral hearing takes place, at the end of the day.

What this recent decision suggests now is that the importance of written advocacy is further elevated because during these difficult times and given the limitations imposed by COVID-19, your client’s written position may very well be their “day in Court”.

Thanks for reading!

Kira Domratchev

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

Ontario Court of Appeal on Tarantino v. Galvano

Court of Appeal Reiterates the Test for Undue Influence

Court of Appeal Upholds Tolling of a Limitation Period due to Fraudulent Concealment

25 May

Latest Notice to the Profession – Highlights

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

As many are aware, the Superior Court of Justice has essentially shut down operations, subject to certain narrow exceptions, in light of COVID-19.

On May 13, 2020, a Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media was published regarding “Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020”. The Notice can be read in its entirety here. Below, I discuss some of the highlights relevant to the estates list.

  • The Notice specifically denotes that the Superior Court of Justice has not closed and that it continues to expand its operations virtually – in writing, or by telephone or video conference hearings. It is further highlighted, that during the suspension of regular in-court operations, lawyers and parties are expected to actively move cases forward.
  • Although the requirement to gown for a Superior Court of Justice appearance is suspended, parties participating in video conferences are expected to dress in appropriate business attire and should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. In fact, some guidance from the Superior Court of Justice on the issue of technical set-up can be found here.
  • On the issue of filings, the Notice indicates that factums should be hyperlinked to relevant cases (instead of filing a Brief of Authorities) and there is a very specific format of the email that is to be sent to the Court to request dates or file materials. Importantly, the size of emails has been expanded to 35MB, however, it is also noted to limit filed materials to only those necessary for the hearing (in addition to the restrictions related to the length of material, already in place).
  • Although materials are being filed electronically, given the pandemic and the need to isolate, the Superior Court of Justice expects that all materials filed electronically be later filed in hard copy with the Court and the requisite filing fee be paid. That means, that it is important to keep track of all materials filed electronically, as there is a positive obligation to deliver hard copies and payment for the filing, at a later time.
  • Service via email is permitted such that it is not necessary to obtain consent or a court order to serve a document by email where email service is permitted.
  • Whereas, urgent matters continue being heard (subject to the Superior Court of Justice’s discretion to decline to schedule for immediate hearing any particular matter listed in the Notice), the following Toronto Commercial and Estate List matters are being heard (the Notice to Profession – Toronto, can be found here):
    1. Select motions;
    2. Select applications;
    3. Case management conferences;
    4. Pre-trial conferences; and
    5. Judicial settlement conferences.

Reviewing this Notice shows that court services are expanding. Certainly, one positive effect of the pandemic has been the overall embrace of various technologies by the Superior Court of Justice, that had not been in place before.

Here is to hoping that the restrictions associated with COVID-19 are soon lifted and the pandemic blows over. At the same time, I am certainly excited to see whether we will see a significant change in court operations moving forward, as a result of this involuntary technological leap forward.

Thanks for reading!

Kira Domratchev

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

TALK 2 NICE: Support for the Elderly During COVID-19

A Further Update on the Estate Arbitration and Litigation Management (EALM) Initiative 

The Pandemic, Law, Technology, and Change

27 Feb

“Jointly or the Survivor of Them” – What Does That Mean?

Kira Domratchev Estate Litigation, Wills Tags: , , , , 0 Comments

In a recent Ontario Superior Court of Justice decision, the Court considered certain extrinsic circumstances surrounding the making of the Will, as well as the reading of the Will as a whole, in reaching a decision regarding its interpretation.

In Love v Wheeler 2019 ONSC 4427, a spouse of a deceased beneficiary sought a declaration that a beneficiary’s estate was entitled under a testator’s Will to an undivided half-interest in property and that the other beneficiary wrongfully appropriated it.

Some Facts

Frances Irene Wheeler died in 2012. She bequeathed a parcel of land to her two sons, Harold William Wheeler and Martin Douglas Wheeler. Her Will stated that this property was to go to Harold and Martin “jointly or the survivor of them”.

The Court grappled with the question of whether Frances meant to leave the property to Harold and Martin as joint tenants or as tenants in common. Certainly, in a joint tenancy, there would be a significant benefit to the survivor of the two brothers, as the other half interest would pass on a right of survivorship, rather than form a part of the deceased brother’s estate.

This is exactly what happened in this case. Martin died in 2015 and in April, 2017, Harold had the title to the property transferred into his own name, on the argument that it was owned by him and Martin, as joint tenants.

Deborah Love, Martin’s common-law spouse of 16 years, commenced an application before the Court, as against Harold. One of the grounds for Deborah’s position was that the extrinsic evidence surrounding the making of the Will, including a prior Will of February, 2009, supports a finding that Frances intended her sons to inherit the property as tenants in common.

The Court’s Decision

In reaching its decision, the Court emphasized its role in giving effect to the testamentary intention of the testator, as expressed in a Will. Justice Chozik gave consideration to the “armchair” rule, which requires a judge to place him or herself in the position of the testator at the time when the last Will was made, and to consider and weigh the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of her property.

Justice Chozik found that Frances intended to leave the property in question to her sons, as tenants in common. This intention was held to be clear from the Will when it is read as a whole, taking into account some of the extrinsic circumstances surrounding the making of the Will.

This decision certainly emphasizes how important it is that the Will clearly stipulates the terms of each bequest, particularly when it comes to large assets, such as real property.

Thanks for reading!

Kira Domratchev

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

The Risks of Joint Tenancy

Joint Tenancy Trap

Severance of Joint Tenancy by Course of Dealing

 

25 Feb

Beneficiary Designations, Testamentary or Not?

Kira Domratchev Beneficiary Designations Tags: , , , , 0 Comments

I recently had a chance to attend a very interesting continuing legal education program organized by the Ontario Bar Association called: “Rights and Limitations on an Attorney under a Power of Attorney”.

The program was chaired by Natalia Angelini of our office and Kimberly A. Whaley of WEL Partners. Professor Albert Oosterhoff, Professor David Freedman, Thomas Grozinger and John Poyser presented their views on various questions surrounding beneficiary designations.

An interesting debate took place at the end of the program on the question of whether beneficiary designations are testamentary instruments.

Professor Oosterhoff presented his view that, beneficiary designations are not in fact testamentary acts and should therefore be considered inter vivos acts. One of the reasons cited by Professor Oosterhoff in this regard that I found compelling is the fact that a beneficiary designation does not have to comply with the formalities required of a Will. The fact is that a beneficiary designation is often executed in passing and the same considerations do not apply to such a decision as typically would apply to the making of a Will.

Then again, a testator can make a handwritten Will in passing which will be just as valid as if made in accordance with the formal requirements. However, the fact that it is made quickly and in passing does not necessarily mean that it is not a valid Will.

Another reason cited by Professor Oosterhoff in support of his position was that, in his opinion, beneficiary designations take effect when they are signed. By way of a further explanation, Professor Oosterhoff clarified that a beneficiary designation is not dependent upon the designator’s death for its “vigour and effect”, despite the fact that performance does not actually take place until the designator’s death.

This opinion was not universally shared by the panel and some of the attendees of the program. One significant issue that was raised was that if beneficiary designations are indeed not testamentary acts, there could be potential tax consequences necessitating legislative reform.

It will certainly be interesting to see whether a new case or legislative reform will shed some light on this question. I can certainly see the appeal and the logic behind Professor Oosterhoff’s view.

Thanks for reading.

Kira Domratchev

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

Conflicts between Beneficiary Designations

Rehel v Methot: Life Income Funds and Testamentary Beneficiary Designations

Beneficiary Designations Left Unchanged Are not Changed

24 Feb

Dementia in the News

Kira Domratchev In the News Tags: , , 1 Comment

Eighty percent of people with Parkinson’s develop dementia within 20 years of their diagnosis. In a recent article in Science Daily, I learned that researchers discovered that the genetic variant APOE4 spurs the spread of harmful clumps of Parkinson’s proteins through the brain. Findings suggest that therapies that target APOE might reduce the risk of dementia for people diagnosed with Parkinson’s disease.

 

In making the above-noted finding, scientists at Washington University School of Medicine in St. Louis, analyzed publicly available data from three separate sets of people with Parkinson’s. It was found that cognitive skills declined faster in people with APOE4 than those with APOE3. People with APOE2, showed no cognitive decline over the period of the study.

Although APOE does not affect the overall risk of developing Parkinson’s or how quickly movement symptoms worsen, an APOE-targeted therapy might stave off dementia, the researchers suggest.

We often blog on the issue of dementia as it affects many aspects of our practice as estate litigators. It is always encouraging to read about a positive study or breakthrough in the area of this debilitating disease.

To learn more about this study, please consider visiting here.

Thanks for reading.

Kira Domratchev

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

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

Six Proven Ways to Prevent Dementia

Introduction to National Dementia Strategy

 

 

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/

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