Author: Natalia R. Angelini
No doubt our youth must navigate an increasingly complex world, and so it isn’t any surprise to see a growing focus on mental health issues and novel ways to address them. This is a very serious issue, yet I couldn’t help but chuckle when reading an article discussing a Dutch university’s new and original stress-management tool. Wait for it…lying in a grave!
Just when life’s challenges are getting you down, you ditch your electronic devices (for 30 minutes to 3 hours), lie in a grave, contemplate the alternative and put your problems into perspective. One student is reported to have said the following after her experience:
“When you think about death, you automatically also think about life. That is because you realize that life isn’t endless and that we are all going to die at one point. It makes you think about what do I want to do in life, and what do I think is the most important, what does my heart feel, what does my mind want to do.”
Maybe it’s the yogi in me, but this feels like a new form of mediation, as one author put it “an invitation to listen to yourself”. I would love to see this service available to students, and adults, locally. Getting into nature is cathartic in its own right, and the option of literally getting into the ground (with the added comfort of a pillow and mat) to reflect seems like a very peaceful and relaxing experience. There are lots of other ways we can let nature give us a boost. I dare you – when summer returns, channel your inner child and roll down a grassy hill!
Have a great day,
In Kirst Estate (Re), the Court of Queen’s Bench of Alberta had before it an interpretation case involving a holograph will of William Kirst (“K”). The will was a short handwritten document that divided the estate equally amongst K’s surviving children, with some qualifying language allowing Whitehorn (“W”), one of K’s children, to live in the family home. W had almost always lived in the home, which was the primary estate asset.
The phrase the Court was tasked with interpreting reads: “Whitehorn can live in the house for awhile, to be determined by Him and his brothers + sisters.”
The sole issue was the interpretation of the words “for awhile”.
The testimony of four of K’s children was considered (although ultimately of little assistance), with two of them believing K’s intention was that W remain in the house indefinitely, and the other two viewing their father’s intention as simply to permit W to stay in the home until he could get his affairs in order. As K discussed his estate with his children separately, each of them had his/her own understanding of K’s intentions. Notably, although K made the will in 1995, none of the kids had previously known about it or discussed its terms with K.
The Court cited and reviewed the following four general principles of interpretation recently set out by the Alberta Court of Appeal to assist in ascertaining K’s intention:
“First, a will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one.
Second, a court must read the entire will, just the same way an adjudicator interpreting a contract or a statute must read the whole contract or statute.
Third, a court must assume that the testator intended the words in the will to have their ordinary meaning in the absence of a compelling reason not to do so.
Fourth, a court may canvas extrinsic evidence to ascertain the testator’s intention.”
The Court concluded that it could determine K’s intention by giving the words in his will their natural and ordinary meaning, and, in so doing, it was satisfied that the intention was to allow W to stay in the home subject to an enforceable condition that he and his siblings agree on how long he can continue to live there. The Court further found that as the siblings could not agree, the condition had not been fulfilled, such that W’s entitlement has ended.
The circumstances in this case are unfortunate, as the siblings had apparently been involved in protracted litigation since K’s death in 2010, including a dispute over the validity of the will. Although holograph wills can be helpful estate planning tools, I wonder if these same contentious circumstances would have developed if K had made his will with effective legal advice.
Thanks for reading,
When we last blogged here on the issue of electronic devices at borders, a Toronto lawyer, Nick Wright, had had his phone and laptop seized by custom officials after he refused to provide password access because solicitor-client privileged information was on the devices.
The authority under which such searches are taking place is the Customs Act, by which courts have previously interpreted “goods” as including cellphones. However, the case law is dated, and there has yet to be a constitutional ruling on the issue.
This may soon change, as Mr. Wright has, together with another lawyer, taken the matter further by applying to the Federal Court seeking a result that would reportedly include declarations that (i) searches on electronic devices without probable cause or search warrant are a breach of the Canadian Charter of Rights and Freedoms, and (ii) searching lawyer-client privileged material similarly constitutes a Charter breach.
The significance of the issue is stressed in the following reported statement of Mr. Wright:
“Solicitor-client privilege is . . . of the utmost importance in the free and democratic society and a fundamental principle of justice, and it’s for the benefit of clients, so individuals,” he says. “In an adversarial system like we have, it’s important that the public be able to consult with their lawyers, in order to participate in the legal process and to have the federal government thieving solicitor-client privilege information undermines our legal system and undermines the adversarial process.”
Until the case is determined, lawyers should assume that information covered by solicitor-client privilege is not protected from search at a border. Accordingly, further to the suggestion of the Canadian Bar Association, using cloud technology and erasing all privileged information from devices is the safest course of action.
We will be keeping an eye on this litigation, and hope to see an updated and meaningful pronouncement on the issue of a reasonable expectation of privacy for lawyers at the border.
Thanks for reading,
There are three ways in which a joint tenancy may be severed (Hansen Estate v. Hansen):
- Unilaterally acting on one’s own share (e.g. selling or encumbering it).
- A mutual agreement between the co-owners.
- Any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.
In Marley v. Salga, the Court addressed the third manner in which to sever joint title – by course of dealing. In this case, there were competing applications brought by Ms. Marley, the deceased’s widow, on the one hand, seeking sole legal and beneficial ownership of the matrimonial home, and by the deceased’s children from a prior marriage, on the other hand, seeking an order that the estate is entitled to a half interest in the property as a tenant-in-common.
The Court declared that the estate was entitled to a half-interest in the property as a tenant in common. The evidence considered to determine the issue included a deathbed conversation between deceased and Ms. Marley, in which Ms. Marley acknowledged the deceased’s wish to divide the property 50:50 between his children and Ms. Marley. The Court seemed to place great weight on this evidence, finding that the deceased and Ms. Marley “were in agreement as to how the property should be handled on his death.” One commentator criticizes the Court for accepting that Ms. Marley was prepared to compromise her property rights “…on the basis of soothing words spoken to her husband on his deathbed without fully understanding her rights, without the benefit of any advice as to the consequences that would result to her and without any compensation or consideration for the loss of those rights.”
Another consideration for the Court was the language of the deceased’s Will, which allows Ms. Marley to occupy the deceased’s half of the property on certain terms, purports to terminate her rights in certain circumstances, and provides for the sale of the property. The Will’s language assisted in swaying the Court, as the Court treated it as a piece of evidence used to discern if there was a common intention, and it inferred that the provision in the Will was known to Ms. Marley. This rationale has been the subject of debate as (i) a testamentary disposition cannot sever a joint tenancy and should not be relied upon as evidence of a mutual intent, and (ii) there does not seem to have been evidence of both spouses taking steps showing a mutual treatment of their co-ownership as a tenancy in common.
If appealed, we may get some helpful clarification on this important issue.
Thanks for reading,
In dependant support cases, the court shall consider many factors and circumstances in determining the amount and duration of support, pursuant to a non-exhaustive list detailed in section 62 of the Succession Law Reform Act. If the dependant is a spouse, the considerations also include a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship. In Webb v. Belway, we see this consideration taking center stage.
The deceased, Mr. Belway, suffered a stroke. He died approximately six months later at age 82. In the months prior to his passing, Mr. Belway was in the hospital and in long-term care. Ms. Webb assisted in in his care, and was acting as Mr. Belway’s attorney for property and personal care.
Mr. Belway died intestate. He was survived by his daughter, who stood to inherit the entire estate of almost $3.0 million. He was also survived by his long-time common-law spouse, Ms. Webb, age 73. Ms. Webb brought a dependant support claim seeking half of the estate.
Mr. Belway’s daughter opposed the application, arguing that due to Ms. Webb’s abhorrent behaviour she should not be entitled to any assets from the estate. Such behaviour included:
- Webb, acting as attorney for property, transferring more than $570,000 from Mr. Belway’s accounts for her own benefit, when Mr. Belway was hospitalized and incapable;
- Webb did not call Mr. Belway’s daughter to advise of her father’s stroke, of his hospitalization or of his having undergone surgery. She further refused to provide a phone number to reach Mr. Belway; and
- Webb took active steps to isolate Mr. Belway during his final months of life, including instructing caregivers to call the police should his daughter and family members attempt to visit.
The court ultimately found that Ms. Webb’s actions were “improper” but that all things considered she should still receive support, stating:
“Ultimately, I am not persuaded that Ms. Webb’s actions were egregious or malicious, nor do I find her actions to have been so unconscionable as to constitute an obvious and gross repudiation of the relationship.
Moreover, after being a common law couple for at least 18 years, though Ms. Webb’s actions are problematic, I do not find they negate her moral and economic claims against the estate.”
This decision suggests that one may need a greater strength and breadth of evidence to establish a course of conduct sufficient to repudiate the relationship, particularly in a long-term spousal relationship that substantially appears to be fairly typical (at least, in this case, until the pivotal health crisis late in life).
Thanks for reading,
The facts are saddening. The applicant and other class members, after losing loved ones, discovered that their loved ones’ obituaries (often with a photo) had been duplicated and posted on Afterlife’s website without permission. Many class members had written the obituaries in a personal way, adding to the emotional blow. The class members were also outraged at Afterlife’s conduct in seeking to profit from their bereavement through sales of candles and other advertising, and in conveying to the public that the families were benefiting from such sales.
The Court granted much of the relief sought, including $10 million in aggravated damages, given its agreement with the applicant that “…Afterlife’s conduct, aptly characterized as “obituary piracy”, is high-handed, reprehensible and represents a marked departure from standards of decency.”
It is heartening to know that justice was done in this case, with the award including injunctive relief preventing the website to operate, as well as a total damage award of $20 million. However, this optimistic feeling is tempered by the fact that Afterlife did not defend the lawsuit and shut down its website shortly after the class proceeding was commenced. It may thus be that enforcement of the Judgment will present a challenge, which would be an unfortunate outcome in an otherwise encouraging decision.
Thanks for reading,
I came across an interesting article discussing a recent survey of professionals, including those in the financial and estates area, conducted by TD Wealth.
Almost half of the participants (for the last two years in a row) cite family conflict as the biggest threat to estate planning. As for the types of family conflict, three are reported as most prevalent: (1) the designation of beneficiaries, (2) not communicating with family members, and (3) working with blended families.
Is there a solution? What immediately comes to mind is the Family Conference, which we have podcasted about at length. It is professionally mediated, and provides a forum whereby the testator reveals his/her proposed estate plan to intended adult beneficiaries, with the objective of obtaining their approval of the plan. The attendees include the testator, the beneficiaries, the mediator and usually other professionals (i.e. the testator’s estate lawyer, financial planner and/or accountant etc.). Discussions are facilitated by the mediator and are held as a group as well as by way of one-on-one caucusing. Views and input about the proposed plan are encouraged to be shared, so that grievances can be aired, resolutions can be discussed and agreement on the estate plan can ultimately be reached. Like all mediation, it is a fluid process and unfolds differently in each case. An estate plan may be accepted as is, changed moderately, or completely reworked if all are in agreement.
Once an agreement is reached, a Family Constitution is prepared. A Family Constitution is a written agreement setting out the framework for the estate plan as well as the process for future family conferences and dispute resolution. Importantly, the Family Constitution is signed by all concerned and includes an agreement not to contest the Will.
The value of such a process, even without reaching resolution, is in the fact that it shows a testator’s clear intention as to how to divide his/her assets, which will likely deflate a brewing Will challenge on the basis of lack of testamentary capacity, undue influence or lack of knowledge and approval of the contents of the Will. If litigation-avoidance is the only positive outcome of the Family Conference, that alone could save the family hundreds of thousands of dollars down the road in legal costs, in addition to wasted time and unnecessary emotional suffering that usually accompanies such a path.
Thanks for reading and have a great day,
 Ian Hull also discusses this subject in detail in his book, Advising Families on Succession Planning – The High Price of Not Talking
An estate trustee has several responsibilities, including paying tax liabilities arising from the deceased’s death. There are multiple deadlines to remember, including:
- Prior Year’s T1 Return – If the death is between January and April, the return for the prior year must be filed within six months after the date of death.
- Terminal T1 Return – If the death is between January and October, the return for the year of death is due April 30th of the next year. If the death is in November or December, the return must be filed within six months.
- T3 Tax Return – If there is income received by the estate after the date of death, the T3 tax return must be filed within 90 days after the end of the calendar year or the estate year (365 days post-death), whichever period the estate trustee elects.
In addition to the above income tax-related deadlines, should the executor apply for a Certificate of Appointment (probate), Estate Administration Tax (“EAT”) will be owed upon filing the application. EAT is calculated on the value of the assets of an estate:
- $5 per $1,000.00, or part thereof, is owed on the first $50,000.00; and
- $15 per $1,000.00, or part thereof, is owed on the value of the estate over $50,000.00.
Once probate is granted, an Estate Information Return (“EIR”) must be filed with the Ministry of Finance. An EIR requires the executor to provide an inventory and particulars of each type of asset of the estate, including fair market values at the date of death. The deadline to file the initial EIR is within 90 days after probate is granted. If the executor discovers incorrect or incomplete information, an amended EIR must be filed within 30 days of the discovery.
The 2019 Budget of Ford’s Ontario government proposes certain changes that would impact both the EAT and EIR.
EAT – The 2019 Budget proposes to eliminate the payment of EAT on the first $50,000.00 of the estate value. This change would spare modest estates from having to pay EAT, which may be particularly impactful in circumstances with limited available monies. It will also result in a savings of $250.00 for larger estates, as no EAT will be payable on the first $50,000.00.
EIR – The 2019 Budget proposes to extend the EIR initial filing deadline from 90 days to 180 days, and the amended filing deadline from 30 days to 60 days. The change to the initial filing deadline may be especially helpful for executors, as it can be a challenge to obtain particulars and date of death valuations of all estate assets within just three months of death.
Thanks for reading and have a great day,
In the last couple of decades we have seen a rise in estate, capacity and trust litigation due in large part to the aging demographic. One would think that elder law disputes – disputes involving retirement residences, nursing homes and/or long-term care facilities – would similarly be on the rise. What was highlighted for the attendees at a recent Personal Injury and Elder Law CLE presentation, however, is that there is limited case law in the elder law area. Although the knee-jerk reaction may be to see few cases litigated through to a final hearing as a positive state of affairs, that is not so. Rather, it seems that there are an insufficient number of claims being made, and an even fewer number that are pursued all the way to trial.
The panel sees ageism as contributing to this set of circumstances. Damage awards are typically lower for the elderly, the rationale seemingly that they have already lived most of their lives and are going to die anyway. The converse “Golden Years Doctrine” was cited as a means to argue for the better protection of elderly plaintiffs, grounded in the argument that the elderly suffer more and are more severely impacted from an injury than their younger counterparts.
Taking such cases to trial and increasing awareness (e.g. media coverage) is a way to create progress and change in this area of the law. The panel advocated for this approach, as well as stressed the importance of electing to have such cases heard in front of a jury, who may be more willing to award larger sums to litigants.
If this advice is followed, we can hope to see more decisions that can build upon the few noted cases in the area (this article references some of them), and more just outcomes for the elderly, their families and/or their estates.
Thanks for reading and have a great day,
In estate litigation it is not uncommon to have reason to engage handwriting experts to attest to the authenticity of a signature on a testamentary document. However, the need to engage a typography expert to speak to the font used on such a document is a much rarer occasion. In McGoey (Re) such an expert was used to expose a sham trust.
In this case, upon Mr. McGoey’s assignment into bankruptcy, the trustee in bankruptcy sought to realize on the assets, seeking a declaration that Mr. McGoey’s interest in two properties held jointly with his wife were assets of the estate and subject to creditor claims. Mr. McGoey and his wife argued that they held title to the properties in trust for their children and, thus, outside the reach of creditors. They asserted that the trust documentation was executed in 1995 for one property and in 2004 for the other.
Upon examination by a typography expert, it was revealed that the dates of execution of the documents were not accurate, as neither Cambria (the typeface on the 1995 document), nor Calibri (the typeface on the 2004 document), were available for use by the general public until 2007. The court accepted the expert’s evidence. However, the issue was not fully resolved, since Mr. McGoey’s financial predicament was not apparent until 2010. He and his wife may have lawfully created trusts for their children between 2007 and 2010.
The court turned its scrutiny to the other circumstances of the case. Although several red flags or “badges of fraud” were found and are cited in the decision, most notable was the fact that nothing distinguished the McGoey’s use of the properties from that of an owner – they used the properties as they desired, encumbered them when they wanted and described themselves as the owners in legal papers. Accordingly, the court concluded that the trusts were shams.
Although both the expert testimony and the surrounding circumstances contributed to the court’s ruling, it seems the evidence of the typography expert would have been definitive on the question had the factual timeline been different. I expect with the ongoing creation of new fonts that we can expect to see increased use of such expert testimony in estate litigation.
Thanks for reading and have a great day,