Author: Paul Emile Trudelle
Locating a Will after death can often be a challenge. Fortunately, the Law Society of Ontario (“LSO”) has resources that can assist with this task. The LSO maintains a resource page with advice on how to locate a Will. Some of the tips include:
- Contacting the lawyer or paralegal who may have prepared the Will directly. The LSO has a lawyer and paralegal directory that can assist by providing information about current lawyers and paralegals. (However, this route can only assist if the lawyer or paralegal who prepared the Will is known.)
- Search the court to see if the Will was deposited with the court. (However, experience tells us that very few Wills are deposited with the court.)
- Search Willcheck.ca or NoticeConnect to see if they have a record of the Will. The benefit of a search through NoticeConnect is that they can send a notice to their mailing list of lawyers and paralegals asking about knowledge of a particular Will.
- Contact the LSO. They may be able to assist in locating a Will prepared by a former lawyer or paralegal.
The LSO has prepared an infographic setting out steps that can be taken to locate a will.
As always, foresight is the best practice. After a Will has been drafted, it is always advisable for the testator to communicate with the named estate trustee(s) to advise them of the location of the Will. After all, there is little benefit to a careful estate plan if the Will cannot be readily located. Telling the estate trustee where this important document can be found can make the already difficult job of being an estate trustee a little easier.
Thanks for reading.
A recently released report by Johan David Michels, Sharon Hartung and Christopher Millard entitled “Digital Assets: A Call to Action” identifies significant difficulties faced by estates, estate trustees, planners, beneficiaries and their solicitors in dealing with digital assets.
The authors surveyed over 500 members of the Society of Trust and Estate Practitioners (“STEP”) around the world.
The key findings of the report are:
- Digital assets have become a common part of modern estate planning and estate administration, with demand for advice expected to increase significantly in the future.
- Clients seeking digital asset advice in relation to both estate planning and estate administration, with social media and email accounts topping the list of most-asked-about assets.
- Clients frequently experience difficulty accessing digital assets on death or incapacity of a family member, causing distress and frustration.
- Third-party service providers can present practical, procedural and legal obstructions to both estate planning and estate administration.
- There is wide variation in policies, practices and tools for dealing with clients’ digital assets, highlighting the need for more education for practitioners on best practices.
- Law reform is needed to enable effective estate planning and estate administration for digital assets.
The report concludes with a call to action. “Accessing digital assets after a loved one’s death can pose a challenge. As digital assets become more prevalent and our lives become increasingly entwined with digital technologies, the need for effective solutions becomes ever more critical. These solutions require a joint response. Bodies such as STEP and its members need to engage with governments and service providers globally in order to produce industry solutions and best practices that will help families plan for their futures with certainty and clarity.
The report also contains links to useful resources for practitioners dealing with digital asset issues.
Thank you for reading.
A decision this week out of the Ontario Court of Appeal emphasizes the need for standing in order to be allowed to proceed with a will challenge.
In Moses v. Moses, 2021 ONCA 662 (CanLII), a son challenged the validity of his father’s 2019 Will. The son was not provided for in the 2019 Will, and the son challenged its validity based on undue influence. However, the father had a prior Will from 1996, which also did not provide for the son. The application judge dismissed the will challenge on the basis that the son lacked standing. Even if the 2019 Will was invalid, the son would not take under the estate due to the 1996 Will.”
The son argued that the question of the validity of the 1996 Will “would be determined at a later date, if necessary”. The application judge and the Court of Appeal disagreed. The Court of Appeal stated that “there was an onus on the [son] to adduce some evidence to call into question the considerable body of evidence adduced by the respondent to establish the validity of the 1996 Will.”
The son also argued that he had a claim against the estate for proprietary estoppel, and that because of this, s. 23 of the Estates Act gave him standing to challenge the Wills. Section 23 provides:
Citation of persons interested
23 Where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed, all persons having or pretending to have an interest in the property affected by the will may, subject to this Act and to the rules of court, be summoned to see the proceeding and may be permitted to become parties, subject to such rules and to the discretion of the court.
The Court of Appeal rejected this argument, accepting the application judge’s finding that the outcome of the son’s claim against the estate did not in any way depend on the validity of the 2019 Will, and thus s. 23 did not give the son standing to challenge the 2019 Will. Further, s. 23 is discretionary, and the Court of Appeal found no error in the application judge’s exercise of discretion.
When considering a will challenge, one must consider standing. Where will I be if I am successful in setting aside the will? If I can be successful on the will challenge but still not in the chips, I may not be allowed to proceed.
Thanks for reading.
Recently, I came across the Japanese term “kaizen”. The term means change for the better, or continuous improvement. The concept envisages constant self- or organizational review in order to make large or small improvements.
A similar concept is explained in James Clear’s book, Atomic Habits. There, Clear explains how small (atomic) changes can make substantial improvements to all aspects of our lives.
My favourite anecdote from Atomic Habits relates to the British Cycling team. The team had historically performed poorly. Then, Sir David Brailsford came on board and implemented his theory of “marginal gains”. Under this theory, a 1% improvement in a number of areas will lead to substantial cumulative gain. In implementing the theory, Brailsford had the floors of the team truck painted white, so that any dust that might impair bicycle maintenance could be seen. He retaught the riders how to wash their hands properly, so as to avoid illness. He had the riders’ sleep habits studied and made changes to their bedding and sleep schedules. He implemented numerous other changes affecting every aspect of the cycling program.
The results from Brailsford’s small changes led to the British Cycling team winning 16 gold medals over 2 Olympics, and 6 Tour de France wins in 7 years. Individually, no change led to the result, but taken together, the small changes resulted in a big gain.
Thanks for reading.
The title of today’s blog comes from the opening line of Derek Thompson’s article, Why Americans Die So Much, published in The Atlantic.
In the article, Thompson observes that U.S. life spans over the past 30 years are falling behind those of other similarly wealthy countries. The author looks at a September 2021 study by the National Bureau of Economic Research which shows that Americans die earlier than their European counterparts in every age group. American babies are more likely to die before they turn 5 compared to Europeans; American teens are more likely to die before they reach 20 than their European peers, and American adults are more likely to die before they reach 65, compared to Europeans. Overall, Europeans have a longer life expectancy.
And the study’s numbers go back several decades. The results are not due to recent COVID deaths, or the recent drug overdose crisis.
Thompson says that finding a straightforward explanation is hard. One factor is gun violence, which is more prevalent in the U.S. Another might be motor vehicle accidents: Americans drive more than residents of other countries.
The study makes three important findings:
- European mortality rates are consistent between rich and poor. This is said to be due to health improvements, which are better disseminated in Europe. The poor in America do not all enjoy the benefit of such health improvements. In America, black teenagers in the poorest areas are twice as likely to die before they turn 20 than those in the richest areas. The effect of poverty on lifespan is substantially higher in the U.S.
- Overall, Europeans live longer than Americans, even when comparing rich Americans to rich Europeans. This, it is said, “says something negative about the overall health system of the United States”.
- On a brighter note, longevity amongst Black Americans is improving, and the gap between white life expectancy and Black life expectancy is closing. This is said to be due to advances in science and technology, which are now more readily accessible to all. In addition, reductions in air pollution have helped, as Black Americans were more likely to live in more polluted areas. Other factors contributing to the closing of the gap include increased drug deaths (more prevalent amongst white Americans), and a decline in homicides, which disproportionally kill Black Americans.
Thompson concludes his article by calling for greater income redistribution and universal health care. “For decades, U.S. politicians on the right have resisted calls for income redistribution and universal insurance under the theory that inequality was a fair price to pay for freedom. But now we know that the price of inequality is paid in early death – for Americans of all races, ages and income levels.”
Thank you for reading.
Does a judge have the authority to treat a claim as having been commenced when the court did not issue a Statement of Claim in time? Yes, according to the decision in Patkaciunas v. Economical Mutual Insurance Company, 2021 ONSC 5945 (CanLII).
There, the plaintiff sought to commence a claim against the defendant. The limitation period was to expire on June 25, 2019. The paralegal for the plaintiff attended the court office to have the claim issued. He was at the court office at 4:29 pm; well before the 5 pm closing time. The paralegal told the court staff about the urgency of the matter, and was told that he would be seen. When called to the counter, the paralegal was told by the lone clerk on duty that the computer system was shutting down at 5 pm, and the Statement of Claim could not be issued. The clerk then turned and walked away. The claim was not issued until the next day.
Justice Dunphy found that the court staff acted improperly in not issuing the claim. He went on to find that he had the inherent jurisdiction to treat as done that which the public officials had a duty to do. “The court must have the capacity to control its own processes and when a demonstrated failing in the court’s processes is proved to be the proximate cause for the apparent failure to accomplish fully a required step before the expiry of a limitation period, the court’s inherent jurisdiction extends to treating as done that which its own staff ought to have done.” He declared that the Statement of Claim be amended to show an issue date of June 25, 2019.
A useful precedent for those rare circumstances where, through no fault of your own, the court, inadvertently, due to backlog or otherwise, doesn’t get done what needs to get done.
Thanks for reading.
Adoption of an independent adult person by another is rare, but not unheard of. In Ontario, adoption of an adult is permitted under the Child, Youth and Family Services Act. See section 199(3). A court Order is required.
Case law has developed the test to be met before the court will make such an Order. A four-part test has evolved through the case law. Essentially, the criteria considered are:
- The adoption would create an actual (not just legal) change in the relationship between the applicant (adopter) and the proposed adoptee;
- Both parties are aware of the legal incidents of adoption, and intend those incidents to govern their new relationship;
- The adoption is motivated by the psychological and emotional need of the proposed adoptee for a new parent or for a parent to “fill the gap” in the parenting of the proposed adoptee;
- The relationship between the applicant and the proposed adoptee would be “enhanced and strengthened” by the adoption order.
These criteria are set out and applied in the leading case of Re Adoption of M.O.M., 2013 ONSC 3252.
Boiled down, the court will look closely at the bona fides of the proposed adoption. For example, an adoption of a boyfriend of a girlfriend to give the girlfriend access to a trust fund set up for the boyfriend’s children (as blogged on in our blog of February 3, 2013) would probably not be allowed.
The issue of adult adoption was considered in the recent case of Toronto Islands Community Trust Corporation v. McLaughlin, 2021 ONSC 206 (CanLII). There, McLaughlin “owned” a home on Toronto Islands. I put “owned” in quotes as the ownership and transfer of Toronto Island homes are strictly regulated under the Toronto Islands Residential Community Stewardship Act (“the Islands Act”). Owners are not allowed to transfer their Island homes, and they must be sold through a statutory trust. The sale must be to buyers who applied to be on a list of interested purchasers. The list contains up to 500 names. Names can be added, but only when space on the list permits. Since February 1993, only 66 of the 262 homes have been sold.
The sale price is regulated, and is substantially below market price.
One exception to the restrictions on transferring is that an owner can transfer or devise an Island residence to a spouse, child or joint owner. However, if consideration is to be paid, it is also regulated. Further, the transfer must be effected through the Trust.
Back to McLaughlin: McLaughlin had a close relationship with Whitfield. The relationship was strong and long-standing. The relationship was such that McLaughlin formally adopted Whitfeld in 2017. He later purported to transfer one-half interest in his Island home to Whitfeld. The Trust then moved to set aside the transfer, arguing that it was in breach of the terms of the Trust and the applicable legislation. McLaughlin agreed to set aside the transfer. However, the Trust then applied to the court for a declaration that the adoption bestowed no legal right to Mr. Whitfeld to obtain title to McLaughlin’s home.
The court considered at length the relationship between McLaughlin and Whitfeld. It concluded that the adoption was genuine and refused to make the declaration.
“The respondent Peter McLaughlin has acted as a father figure to the respondent Steven Whitfield for approximately 37 years. This is not a case of two adults with little or no prior relationship engineering an adoption to defeat the purpose of transfer restrictions on Island homes. This is an example of a genuine family relationship that stretches back decades and that is amply supported by contemporaneous documentation over the course of 37 years. In those circumstances there is no reason to place any limitation on the definition of a child as including an adopted child under the Islands Act.” …
“Given the depth of evidence of a long-standing familial relationship between Mr. McLaughlin and Mr. Whitfield, I am inclined to apply the words of the Islands Act, literally and find that Mr. Whitfield is a child of Mr. McLaughlin for purposes of that Act. It is highly unlikely that two other adults would engage in a 37-year relationship involving their immediate and extended family to engineer a transfer of an Island home to circumvent the restrictions contained in the Act.”
The court did not place significant weight on the fact of the prior adoption Order, and felt that it could assess the nature of the relationship afresh, noting that adult adoption Orders are usually unopposed, and noting that the legislative purposes of the Child, Youth and Family Services Act are different from the Islands Act.
The court in McLaughlin considered s. 217(2) of the Child, Youth and Family Services Act, which provides that “For all purposes of law, as of the date of making the adoption order, …the adopted child become the child of the adopting parent … .’ The court concluded that, as a matter of statutory interpretation, it was allowed to review the nature of the relationship between McLaughlin and Whitfeld in order to ensure that the underlying purpose of the Islands Act, being to establish that a fair scheme to make Island homes available to the public at large, was maintained.
Thank you for reading.
Last Friday I blogged on a rectification decision out of B.C. That case, Re Jamt, was applied in an even more recent decision on rectification, Simpson v. Simpson Estate. There, the judge (who was the same judge as in Re Jamt,) observed that Re Jamt appears to be the sole decision considering the rectification provisions of B.C.’s Wills, Estates and Succession Act.
In the more recent decision of Simpson v. Simpson Estate, the deceased’s will provided that his shares in a corporation were to go to his two adult children. The rest of the estate passed to the deceased’s second wife. However, the shares were subject to a shareholder agreement, and the co-owner exercised his right to purchase the shares from the estate pursuant to the shareholder agreement. The deceased’s second wife, who was also the estate trustee, then took the position that the gift of the shares failed by reason of the operation of the shareholder agreement and the fact that the shares could not be transferred to the children.
The children applied to rectify the will. They asked that the will be rectified by adding a provision to the will so that the shares or the fair market value of the shares as received pursuant to the shareholder agreement passed to them.
The court granted the rectification sought. Extrinsic evidence from the deceased’s instruction meeting with the drafting solicitor was reviewed. The court concluded that;
“In my view, it is a reasonable inference that, since [the deceased] wanted [his children] to have the Shares, it is more likely than not that he also wanted them to receive the market value of the Shares if bought [under the shareholder agreement]. It would be unusual to want them to have the Shares but not their market value purchase price from their sale.”
Accordingly, the B. C. test for rectification was met:
- The deceased’s intention was that the shares or the value of the shares went to his children;
- The will as written failed to carry that intention out; and
- The failure was a consequence of an error or accidental slip. In this case, the error was that the deceased did not realize and was not advised by the drafting solicitor that the gift of the shares needed to specifically address the impact of the shareholder agreement.
Thank you for reading.
As I write this, the Tokyo 2020 Olympics are in full swing. Congratulations to all Canadian athletes competing.
This week’s blog is on rectification of a will. It also has an Olympic connection.
As reported in Jamt Estate (Re), Egil Ruud Jamt died in Vancouver, B.C. on August 16, 2016. He died leaving a will dated February 14, 2012. The will, prepared by a lawyer, named the deceased’s “nephew, Per Kare Jamt” as sole beneficiary of his estate.
The problem was that the deceased did not have a “nephew” by the name of “Per Kare Jamt”. He did, however, have a nephew by the name of “Per Martin Jamt”. Per Martin Jamt applied to rectify the will so that he was the beneficiary. The application was not opposed by any of the deceased’s intestate beneficiaries.
The court allowed the rectification. In doing so, the court considered the rectification provisions of B.C.’s Wills, Estates and Succession Act, which allows the court to rectify a will where the court determines that the will fails to carry out the will-maker’s intentions because of:
- an error arising from an accidental slip or omission;
- a misunderstanding of the will-maker’s instructions; or
- a failure to carry out the will-maker’s instructions.
The court found that the deceased made an “accidental slip” in confusing his nephew’s middle name with the middle name of his predeceased brother. In finding that Per Martin Jamt was the correct beneficiary, the court considered the following:
- The deceased had many nephews, but only one with the name “Per”;
- “Per Kare”, named in the will, was the deceased’s brother, and predeceased the deceased;
- The deceased told the drafting lawyer that he wanted to benefit his brother’s youngest son: Per Martin Jamt fit this description;
- The deceased told the drafting lawyer that his nephew was about 60 years old. Per Martin Jamt was about 60 years old;
- The deceased provided in his will that if Per Kare Jamt was to predecease, Per Kare Jamt’s two children should have the estate. Per Martin Jamt had two children;
- The deceased provided the drafting lawyer with a telephone number for the named beneficiary. This telephone number matched Per Martin Jamt’s telephone number;
- The deceased provided the drafting lawyer with an address for the named beneficiary. This address matched Per Martin Jamt’s address;
and, now for the Olympic connection,
- The deceased told the drafting solicitor that he had recently seen his nephew in Vancouver in 2010 in connection with the Vancouver Winter Olympics. Per Martin Jamt visited the deceased in Vancouver in 2010 in connection with the Vancouver Winter Olympics!
(I admit: the Olympic connection was a weak one, but nonetheless.)
The court had no difficulty in concluding that the intended beneficiary was Per Martin Jamt.
Thanks for reading.
Sailors, and in particular, pirates are often depicted as wearing gold earrings. There are many legends as to why they adopted this particular fashion statement. One has a clearly estate-related basis.
Sailors were often given earrings to commemorate certain sailing milestones, such as crossing the equator or rounding the treacherous Cape Horn. Superstition also played a role, as many believed that gold earrings would improve their eyesight, prevent seasickness or even drowning. Wax was often pressed onto the earrings, which could serve as earplugs when firing a cannon. Another theory is that the gold earrings were just a way for pirates to show off their wealth.
From an estate planning point of view, sailors would wear valuable earrings so that their funerals could be paid for if their bodies washed ashore. If a pirate died on the ship, the value of the earrings could be used to cover the cost of transporting their body back home, so as to avoid a burial at sea (assuming that there is honour amongst thieves, and that the earrings were used as intended).
Actor (non-pirate) Morgan Freeman sports gold earrings. He has been reported as saying that his earrings are worth just enough to pay for a coffin in case he dies in a strange place.
Preplanning a funeral is always a good idea. It alleviates significant stress, both financial and emotional, on those left behind. It also allows the planner to ensure that they are given the burial they want. Take a lesson from a pirate: make a plan.
Thanks for reading. Have a great weekend.