Author: Kira Domratchev

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/

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

 

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