Author: Kira Domratchev

13 May

The Doctrine of Righteousness and Its Place in Estate Litigation

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

The doctrine of righteousness is a historical concept that is interesting to consider in the context of estate litigation.

Apparently, it was first developed in the 1800s to protect will-makers from consequences of the actions of those attempting to gain a benefit from another’s Will, specifically through the exercise of undue influence.

The case law on this particular concept is quite sparse.

This doctrine was considered by the Supreme Court of Canada (“SCC”) in Riach v Ferris, [1934] SCR 725 where the case of Barry v Butlin was reviewed. It was mentioned in passing by the British Columbia Supreme Court in Halliday v Halliday Estate, 2019 BCSC 554, without any significant commentary as to its effect or place in a Will challenge.

A more in-depth analysis of this doctrine, however, was provided by the Saskatchewan Court of Appeal (“SKCA”) in the decision of Karpinski v Zookewich Estate, 2018 SKCA 56.

The SKCA held that this doctrine may apply where a person, who is “instrumental” in the drafting of the will, also receives a benefit from the will greater than the other beneficiaries. In that case, there may be a requirement for such a recipient to prove the “righteousness” of the transaction.

The SKCA further noted that the SCC also stated that these rules of law apply to all circumstances that raise the “suspicion” of the Court and not only where a person who is instrumental in the drafting of the Will receives a superior benefit. According to the SKCA, this may suggest that this doctrine is only an example of the Court finding a certain kind of relationship to be a suspicious circumstance such that the burden of proof shifts to the propounder of the Will.

The SKCA’s comments are in contrast to John Poyser’s position set out in his book entitled “Capacity and Undue Influence” where he relays his views that the doctrine of righteousness is its own unique doctrine and ought not to be confused with the concept of suspicious circumstances.

Thanks for reading!

Kira Domratchev

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

Court of Appeal Reiterates the Test for Undue Influence

Proving a Will Executed Under Suspicious Circumstances

A Question of Fact: Will Challenges and Mistaken Belief

11 May

When Exactly Does the Two Year Limitation Period Expire?

Kira Domratchev Litigation Tags: , , , 0 Comments

As we all know, claims must be commenced in a timely fashion. If too much time passes, a claimant may be precluded from commencing their claim. That is referred to as a limitation period.

In Ontario, the Limitations Act, 2002, SO 2002, c. 24 governs the question of limitation periods. In accordance with section 4 of this Act, the basic limitation period for commencing proceedings is two years from the time the claim was discoverable.

The specific wording of section 4 is as follows:

“Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”

When reading this, an interesting question comes to mind, in that, when does the limitation period expire, exactly?

I reviewed some of the cases that interpreted this provision (and there are well over 1,000 reported decisions that address it) and found a few interesting cases:

  • In the decision of Winmill v Woodstock Police Services Board, 2017 ONSC 2528, the Court addressed the question of a limitation period in the context of an altercation with the police that occurred on June 1, 2014. The Court found that the two year limitation period expired on June 1, 2016 – meaning exactly two years from the date of the incident.
  • In the case of Seenergy Foods Ltd v Ready Go Transport Inc, 2019 ONSC 4562, the Court addressed the question of whether the moving party was out of time to add a defendant to an ongoing action. For context, an examination for discovery took place on January 26, 2018 and the name of the proposed defendant was provided by way of an answer to an undertaking on November 12, 2018. The Court found that the limitation period did not expire earlier than January 26, 2020 and most likely not until November 12, 2020. In this case, the Court was also of the position that the limitation period expires exactly two years from the date that the claim was discovered.
  • In Prescott v Barbon, 2015 ONSC 7689, the Court addressed whether the plaintiff was out of time to pursue a claim relating to a motor vehicle accident that took place on December 28, 2008. The Court found that because December 28, 2010 was a holiday, the limitation period did not expire until the end of December 29, 2010. It is important to consider that the Court made its decision in reliance on whether or not the Court was opened so that the plaintiff could issue the claim. In light of that, I read this decision to suggest that the two year limitation period expired on December 29, 2010 at 5 p.m.

Thanks for reading!

Kira Domratchev

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

How to Deal with the Two-Year Limitation Period under Section 38(3) of the Trustee Act

Incapacity, Limitation Periods and Litigation Guardians: Complications Galore

Trustee Act – Limitation Periods and Discoverability

10 May

Beware of the Illusory Truth Effect!

Kira Domratchev General Interest Tags: , , , 2 Comments

The illusory truth effect, also known as the illusion of truth, describes how, when we hear the same false information over and over again, we often come to believe it to be true.

I think this concept is an important one to consider for litigators, as we are often embroiled in files that last many years on end. In fact, so much information is often exchanged over a given period of time, that you start to question what really happened. I certainly find myself doing just that on many long playing files.

The trouble with this phenomenon is that most well-informed individuals are prone to this bias and particularly in the age of social media where we often see the same information repeatedly, it is a real issue.

You would think that before deciding whether a claim is true or false, one would compare the claim to available evidence?

Unfortunately, we have to make countless decisions on a daily basis and we simply do not have the time to engage in a lengthy process of comparing and contrasting with respect to every call that needs to be made. We rely on many shortcuts, called heuristics, that can lead to errors in our judgment.

Why Does It Happen?

According to renowned behavioural economist, Daniel Kahneman, there are two thinking systems in our brain: a) System 1 – is fast and automatic, working without our awareness; and b) System 2 – that handles deeper, more effortful processing, and is under our conscious control. Given the amount of decisions we need to make in a day, we tend to rely on System 1, a lot more often than System 2.

Why Is It Important?

In the era of the Internet, we are surrounded by false rumours, conspiracy theories and very often, outright lies. Furthermore, the illusory truth effect doesn’t just affect us by accident, as propagandists understand that repetition is key to forcing people to accept their message.

Importantly, How Do We Avoid It?

This type of bias is quite tricky to avoid, given how pervasive our use of System 1 thinking is. For that reason, critical thinking is the best tool at tackling this issue. In other words, fact-checking your claim the first time you hear it is important in order to reduce the power of the illusory truth effect.

To learn more about this, check out an article by The Decision Lab entitled “Why do we believe misinformation more easily when it’s repeated many times?” here.

Thanks for reading.

Kira Domratchev

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

Ongoing Questions with Expert Evidence

Attending a Virtual Conference: Insights from the Family Dispute Resolution Institute of Ontario Conference

Medical Expert Evidence and the Hippocratic Oath

25 Feb

Handwritten Wills/Codicils – Yay or Nay – Larry King’s Estate, as the Latest Example

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

Handwritten Wills/Codicils are certainly quite rare, particularly for people with means. In certain circumstances, and particularly where the testator had made a pre-existing Will, the presence of a subsequent handwritten Will or Codicil can suggest the presence of suspicious circumstances.

As Paul Trudelle blogged last week, Larry King apparently executed a secret handwritten codicil in 2019 that divided his roughly $2 million estate amongst his five children, to the exclusion of his wife, Shawn King. Mrs. King apparently intends to challenge the validity of the 2019 codicil.

In Ontario, an amendment to a Will is referred to as a “codicil” and it is considered to be a Will, for the purposes of the Succession Law Reform Act. A handwritten Will, in Ontario, is referred to as a “Holograph Will” and the only requirement is that it be made wholly by the testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. The fact that a Holograph Will is usually made without witnesses will often cause litigation, particularly if there are suspicious circumstances surrounding its execution and/or discord in the family of the deceased.

If Mr. and Mrs. King resided in Ontario, Mrs. King could pursue various claims in challenging the validity of the 2019 codicil (subject to the available evidence), including:

  • Lack of requisite testamentary capacity on Mr. King’s part;
  • Mr. King being subject to undue influence from any or all of his children (or other third parties);
  • Presence of suspicious circumstances in the execution of the codicil; and
  • Presence of fraud in the execution of the document (which is pleaded quite rarely, as there are serious costs consequences for those that make such an allegation but are unable to prove it).

It will certainly be interesting to see how this matter unfolds, particularly taking into account that $2 million is not a significant amount when the costs of litigation are taken into account.

Interestingly, some sources suggest that his Estate is actually worth $50 million, which sounds a lot more accurate!

Thanks for reading!

Kira Domratchev

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

When to Make a Codicil

Alterations to a Will – When are they valid?

Back to Basics: Is This Testamentary?

23 Feb

Ontario Raises Small Estate Limit to $150,000.00 – Now What?

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

As Ian Hull and Daniel Enright of our office blogged last week, as of April 1, 2021, small estates in Ontario will be defined as those worth $150,000.00, instead of the $50,000.00 figure we are all used to.

The Ontario Attorney General, Doug Downey, advised that the process of applying to manage an estate in Ontario was the same, whether it is worth $10,000.00 or $10 million, which often deters people from claiming smaller estates.

As a result of this change, more estates will be able to access a simplified probate process, though the amount of probate fees payable will not change.

Although these changes are welcome, some consider that there are still a number of other issues outstanding, such as:

  • Due to real estate values, estates in Toronto could be considered small, whereas that would not be the case in other parts of the province (e.g. a $500,000.00 estate in Toronto could be considered small); and
  • The probate process itself could be simplified, as many financial institutions take the position that assets cannot be managed until such time as probate is obtained (which in turn can often cost an estate, as asset values fluctuate).

A recent article discussing the above-noted points can be found here.

It will certainly be interesting to see if the new changes will make a difference, and whether more changes are coming, in light of the concerns expressed by various members of the legal profession.

Thanks for reading!

Kira Domratchev

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

Simplified Procedures for Small Estates Project

A Simplified Procedure on the way for Modest Estates?

Fare Thee Well, Fax Machine! An Overview of Changes to the Rules of Civil Procedure

22 Feb

More on Biogen Inc. – Will They or Won’t They?

Kira Domratchev In the News Tags: , , , 0 Comments

I recently blogged about Biogen Inc. and the drug in development that is said to be the first treatment that could show decline in people with Alzheimer’s disease.

Since I wrote about this in November, 2020, Biogen has continued working towards the coveted regulatory approval from the U.S. Food and Drug Administration (FDA).

Despite a panel of experts at the FDA voting against the drug in November, 2020, the FDA has extended the review period of the drug by three months. For reference, the panel voted “no” to three questions related to whether a single successful large trial of the drug was sufficient evidence of the drug’s effectiveness, given the clear failure of a second large study.

Although the FDA is not obligated to follow the recommendations of the panel, it usually does.

Notwithstanding the FDA’s history of following the panel’s recommendations, this extension raised some hopes that the drug may still be approved which reflected in an increase of Biogen’s shares by 8% premarket.

Obtaining regulatory approval would certainly be of benefit to the shareholders of Biogen. However, if the drug is actually effective, it would certainly change the lives of many people afflicted with Alzheimer’s today.

Stay tuned for more updates!

Thanks for reading.

Kira Domratchev

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

Dementia in the News

Introduction of National Dementia Strategy

New Model of Care for Those with Dementia Coming to Canada

26 Nov

Dealing with an Intestacy: the Importance of Making a Will

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

Recent reports indicate that Chadwick Boseman is the latest celebrity to die without a Will. His wife is currently seeking to be appointed administrator of his Estate.

This certainly shows that many people, including those with significant assets, often procrastinate when it comes to preparing a Will. The fact is that, no matter how many assets you have, a sound estate plan can help you address any potential tax liabilities, take advantage of certain planning strategies and otherwise make life much easier for your beneficiaries, as addressing an intestate estate can often have its challenges.

The benefits of making a Will are numerous, including (but not limited to) the ability to:

  1. Decide who gets certain personal items after your death;
  2. In contrast to an intestacy, provide for your children (if any), particularly if they are minors;
  3. Consider whether there are any parties who can complicate the distribution of your estate and address potential strategies in response to that;
  4. Appreciate what assets will form a part of your estate and what assets will flow outside of your estate, as well as the benefits associated with either;
  5. Take care of any pets that you may have (particularly those that may be expensive to maintain); and
  6. Decide who will be in charge of administering your estate.

Without a Will, you essentially leave the decisions respecting your assets in the hands of others and more often than not, in the hands of the Court. In certain situations, having no estate plan may fuel disagreements between your heirs which may leave long lasting effects on family relationships.

I, for one, think these are great reasons to make an estate plan!

Incidentally, it is “Make a Will Month” with the Ontario Bar Association. Click here for more details.

Thanks for reading.

Kira Domratchev

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

Distribution on Intestacy: The Preferential Share

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

Separation and Intestacy Rights – How Not to Benefit Your Spouse

24 Nov

A Perceived Gap in Alberta’s Succession Law

Kira Domratchev Estate Litigation, Support After Death Tags: , , , , , 0 Comments

I came across an interesting report on Alberta’s succession law and what is perceived as a gap that has affected family maintenance and support in the province. The report was published by the Alberta Law Reform Institute (ALRI) and can be found here.

In accordance with the Family Law Act in Alberta, a child can apply for and may be entitled to support from a person standing in the place of a parent, when a couple separates. Under the Wills and Succession Act, however, which applies when a person dies, there is no provision addressing the distinction of a “person standing in the place of a parent”. What that means is that while a person who is characterized as a “person standing in the place of a parent” is alive, the child can apply for support under the Family Law Act but if this person dies, that same child has no ability to seek support from the Estate of this person “standing in the place of a parent”.

Consequently, the ALRI is of the view that there is a gap in the law that ought to be rectified on the basis of an equality argument, alone. This report was apparently recently sent to the province of Alberta but there has been no response, as of yet.

In comparing the provisions of the Succession Law Reform Act here in Ontario, it appears that the very issue raised by the ALRI is addressed by section 57(1) where the definition of a “child” includes a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where a child is placed for valuable consideration in a foster home by a person having lawful custody.” [emphasis added]

Certainly, it is important that children be able to bring a support claim against the estates of their parents, where not appropriately provided for out of the estate, even where not formally adopted but clearly treated as a child.

It will be interesting to see what happens and what the province of Alberta will do, if anything, in response to this report from the ALRI.

Thanks for reading!

Kira Domratchev

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

Perils in the Succession of the Family Cottage

B.C.’s Wills, Estates and Succession Act: Claims May be Pursued by Beneficiaries

Testing the waters of Section 72(1)(d) of the Succession Law Reform Act

23 Nov

Biogen Inc. – What Are They All About?

Kira Domratchev In the News Tags: , , 0 Comments

In estate litigation, we often hear about Alzheimer’s and how it can affect the daily lives of so many Canadians. Unfortunately, there is no treatment for Alzheimer’s at this time, other than medication that can be taken to (hopefully) slow its effects and prolong one’s quality of life.

Interestingly, Biogen Inc. has been working on what has been labelled a “controversial” new drug called “Aducanumab”. The controversy is, first of all, the rather bumpy ride this new drug has had with the U.S. Food and Drug Administration (FDA) and the regulatory approval that this treatment needs in order to be made available to consumers.

According to Biogen, if this drug receives regulatory approval, it will become the first treatment to slow decline in people with Alzheimer’s disease.

The problem is that to date, it is not clear as to whether there is “substantial” evidence of effectiveness which is what is required in order to gain the coveted regulatory approval that allows the drug on the market.

A recent update is not positive for Biogen as an independent advisory committee to the FDA found that the clinical data does not show the drug to be effective for the treatment of Alzheimer’s disease.

I am sure this is not the outcome desired by Biogen strictly from a financial perspective but it is certainly not a positive outcome for the many people affected by Alzheimer’s today.

Here is to hoping that if this treatment does not prove to be successful, that another one becomes available soon.

To learn more about recent updates on Biogen Inc. here is an article from November 10, 2020.

Thanks for reading!

Kira Domratchev

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

An Eye Test to Diagnose Alzheimer’s?

Alzheimer’s Disease: Using Technology for Treatment

Predictive Prowess: Alzheimer’s and Artificial Intelligence

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

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