Author: Kira Domratchev

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

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

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