Author: Paul Emile Trudelle
We have blogged previously on whether a suicide note could be found to be a valid holograph will. See Suzana Popovic-Montag’s blog “Testamentary Capacity and Suicide”. Also see my paper on the subject, “Suicide, Suicide Notes and Testamentary Capacity”.
The courts have held that a suicide note can be considered to be a valid holograph will. However, the usual tests of establishing that the note demonstrates sufficient testamentary intent, and the requirement that the propounder establishes capacity remain. The fact that there was a suicide is a consideration but is not conclusive evidence of incapacity.
The court recently considered whether a suicide note was a will in McGrath v. Joy, 2020 ONSC 7454 (CanLII). There, the deceased took his own life after writing a note that purported to void any bequests to his spouse as contained in a prior will.
In considering whether the note was a valid holograph will, the court noted that a suicide note is a “special circumstance” that requires close scrutiny. In light of evidence relating to the deceased’s alcohol and drug use on the day in question, the court found that there were “suspicious circumstances” that “spent” the presumption of capacity and reshifted the legal burden of establishing testamentary back onto the propounder.
The court considered extensive evidence from the deceased’s family and friends about the deceased’s alcohol and drug use, including evidence about his condition on the day of his suicide. The propounder relied on an expert opinion. However, the opinion was inconclusive. The court also looked at the content of the note itself. It was sloppily written. It was a significant departure from formal wills previously made by the deceased.
The court concluded that the propounder had not met the burden of establishing on a balance of probabilities that the deceased had testamentary capacity.
In the costs decision, the judge cited the “modern costs rules with respect to estates” and the general proposition that the “loser pays” that applies to estate litigation. The court held that the propounder “acted unreasonably in attempting to have this suicide note admitted into probate as a holograph will” for a number of reasons, including the fact that he was not acting as an estate trustee seeking the guidance of the court but, rather, was pursuing his self-interest in an attempt to oust the legacies to others, and the fact that his own expert was not able to opine on the deceased’s testamentary capacity. However, the estate also bore some responsibility for costs due to the deceased’s own actions in preparing the note. A blended costs award was made whereby the propounder bore some of the costs and the estate bore the rest.
Thank you for reading.
A lawyer was sued for negligence in allegedly failing to ensure that a will was not procured by undue influence or as a result of the testator’s lack of testamentary capacity. On examination for discovery, the lawyer was asked to advise as to texts or other secondary sources that the lawyer regarded as authoritative regarding the drafting of wills, and to advise as to whether the lawyer was aware of any cases (primary sources) that indicated that the lawyer was not required to document evidence of testamentary capacity.
The lawyer refused to answer those questions. The plaintiff brought a motion to compel the lawyer to answer. Must the lawyer answer those questions?
In Marshall v. Jackson, the motions master ordered the lawyer to answer the questions. On appeal, reported at 2021 ONSC 2361, the court held that the questions need not be answered.
The appeal judge held that it was trite law that a party cannot function as his or her own expert. By ordering the questions to be answered, the master in effect required a fact witness to research and deliver a legal opinion, which was contrary to a first principle of the law of evidence. Citing the Supreme Court of Canada, the appeal judge stated that “it is for the [trier of fact] to form opinions, and draw inferences and conclusions, and not for the witness”. The questions, it was held, went beyond asking the defendant for his or her general understanding of the steps he or she should have taken to ascertain testamentary capacity, but required that the lawyer research primary and secondary sources of law in an effort to provide support for legal reasoning going to the standard of care.
A third question was also refused: whether the defendant “understood that he was obliged to ensure that all available means were utilized to ascertain testamentary capacity”. The defendant submitted that the question was too broad to be answerable. Would “all available means” include hiring a team of psychiatrists to evaluate the testator’s capacity? The appeal judge held that while the defendant’s counsel may have a point, the fact that the question was excessively broad did not make it unanswerable. “Indeed, the very absurdity of the literal meaning of the question makes it an easy one to answer.” Presumably, the answer will be “No”.
Next question, counsel?
Thank you for reading.
Goldie and Kevin inherited a life interest in real property in Nova Scotia. Under the will, the survivor will get the property in fee simple.
Goldie wanted to have the property divided up. In the alternative, she wanted it sold and the proceeds split. Kevin opposed.
Could Goldie force the partition or sale of the lands? The Nova Scotia Court of Appeal said no.
In its decision of Fownes v. Ernst, 2021 NSCA 8 (CanLII), the Court of Appeal considered the nature of each of the party’s interests in the land. The Court considered that neither party had a “vested” fee simple interest, and only a contingent interest. At best, the parties had an “expectancy”, and an expectancy is not a property right. The right of survivorship granted in the will did not create an interest in the land until one of the life tenants died.
The Court of Appeal concluded that the Partitions Act “permits actions by those holding estates in possession, not in remainder or reversion.” Goldie could not force the sale of the land.
The Court of Appeal noted that the language of the Ontario legislation is broader, and permits life interest holders to bring partition proceedings. However, even with the broader language, Ontario courts do not permit holders of a contingent remainder interest to bring partition proceedings, as their interests were not “possessory”.
The issue is put another way in the Ontario decision of S. B. v. W. B., 2020 ONSC 5023 (CanLII). There, the court noted that partition or sale may occur where the life interest “runs concurrently” with the other interests, by not where the life interest runs “consecutively” with the other interests. Presumably, where the interests of the remainders are not immediate, but only arises after the life interest is determined, the remainders cannot seek partition or sale and oust the life tenant.
Thank you for reading. Have a great weekend.
A recent video presentation by the Federal Court of Canada gives a number of tips for a successful Zoom hearing. A recording of the presentation can be found here.
The Federal Court of Canada has heard over 2,000 hearings over Zoom since the beginning of the pandemic. Justice Pentney of the Federal Court of Canada reports that the system is working. However, the key to making it work is, as in most things legal, preparation.
In the seminar, Justice Pentney provides tips for effective Zoom hearings. These include:
- Understand the software.
Do not learn on the fly. Practice with the software. Learn the features available and know how to use them.
- Preplan with opposing counsel.
Discuss software issues, documents to be referred to, procedural matters, witness order, etc.
- Frame your shot.
Be seen clearly. Be well-lit.
- Avoid distracting background.
- Rename yourself.
Change your screen name in Zoom to reflect your role. Eg. “Paul Trudelle: Plaintiff’s counsel”, etc.
Ensure all documents are available. Be familiar with the filing system used by the court.
- Document sharing.
Ensure text size is big enough. Highlight text if appropriate.
- Close other apps.
Make sure unused apps are closed, to avoid notifications from popping up, and to avoid accidental sharing of unintended information.
- Be wary of muting/unmuting.
Make sure that the mic doesn’t pick up unintended discussions.
- Have backups.
Make sure that a cell phone hotspot is available in case of Wi-Fi failure. Limit other network users to avoid system slowdowns. Have backup headphones with a mic.
For an excellent summary of the presentation, see Dan Rosman’s video summary, here.
Have a great weekend.
There have recently been many proposed changes to estate laws in Ontario under the Accelerating Access to Justice Act, 2021. The Bill passed Second Reading on March 2, 2021, and was referred to a Standing Committee.
We have blogged on many of these proposed changes. See “Modernizing the Succession Law Reform Act”, and “Ontario Raises Small Estate Limit to $150,000 – Now What?”.
One of the proposed changes is an increase in the amount of money that can be paid to a parent of a child when money is owed to the child.
As a starting point, it must be kept in mind that a parent of a minor is not the guardian of the child’s property unless specifically appointed as such by the court. A parent is not authorized to deal with a child’s property.
However, if a person is under a duty to pay money or deliver personal property to a minor (such as an Estate Trustee where there is a bequest to the minor), the person may pay the amount owing or deliver the property to a parent with whom the child resides, per s. 51(1) of the Children’s Law Reform Act (“CLRA”). However, s. 51(1.1) of the CLRA presently limits the amount payable to the parent to $10,000. If the amount payable is more than $10,000, other steps will have to be taken, such as the appointment of a guardian for the child, or the payment of the funds into court.
Under the proposed revisions to the CLRA and its regulations, this amount is to be increased to $35,000. Further, the provision will specifically apply to money payable under a judgment or court order or on an intestacy. Currently, amounts payable under a judgment or court order were specifically excluded.
Under the CLRA, a parent who receives funds on behalf of a minor has all of the responsibilities of a guardian for the care and management of the money or property. The parent may be required to account, and must transfer the money or property to the minor when they turn 18.
Thank you for reading. Have a great weekend.
Some Solace for Surviving Married Spouses: Ontario Increases “Preferential Share” to Spouse on Intestacy
Ontario has increased the preferential share payable to a spouse on intestacy from $200,000 to $350,000.
A recent amendment to the regulations under the Succession Law Reform Act prescribes the preferential share as being $350,000 for the estate of a person who died on or after March 1, 2021. The preferential share remains at $200,000 for estates of a person who died before March 1, 2021.
The last change to the value of the preferential share was in 1995, when it was increased from $75,000 to $200,000.
Under the Succession Law Reform Act, where a person dies without a will, but with a “spouse” and children, the spouse is entitled to the “preferential share”, and ½ of the balance of the estate if there is one child, or 1/3 of the balance if there is more than one child.
The provision applies to married spouses only, including married but separated spouses. However, other recent proposed amendments to the Succession Law Reform Act may change this. The proposed legislation provides that the intestacy rules that provide for a spouse do NOT apply if “the spouses are separated at the time of the person’s death”. “Separated” is defined as meaning either (i) they lived separate and apart for three years as a result of the breakdown of their marriage; (ii) they entered into an agreement that is a valid separation agreement; (iii) a court made an order settling their affairs arising from the breakdown of the marriage or (iv) a family arbitration award was made settling their affairs. Further, there must have been no reconciliation: they must have been living separate and apart as a result of the breakdown at the time of death.
Cue the litigation.
On October 30, 2020, I blogged on the preferential share. In that blog, I asked whether it was time to reconsider the value of the preferential share. It looks like the time has come.
Have a great weekend.
A Certificate of Pending Litigation is common in estate litigation, where claims often involve an interest in land.
In order to obtain a Certificate of Pending Litigation (“CPL”), the moving party must demonstrate a triable issue as to whether the party has a reasonable claim to an interest in the land. The threshold is a low one: the moving party does not have to show that they are likely to succeed. See Natalia Angelini’s blog on CPLs, here.
Rule 42.01(3) of the Rules of Civil Procedure provides that a motion for an Order granting a CPL may be made without notice. Having said that, the question becomes should the motion be brought without notice. The recent decision of Justice Myers in Moses v. Metro Hardware and Maintenance Inc., 2020 ONSC 6684 (CanLII) suggests that parties should strongly consider bringing the motion on notice.
There, the plaintiffs moved for and obtained a CPL without notice. The defendants moved to set it aside. They were successful.
In setting aside the CPL, Myers J. found that the plaintiffs failed to make full and fair disclosure of all material facts, did not identify any of the defendants’ likely responses, and relied improperly on inadmissible evidence.
Myers J. observed that the plaintiffs did not need to bring the motion without notice. There was no urgency. However, by proceeding without notice, the plaintiffs voluntarily and knowingly undertook the extra obligation to make full and fair disclosure of facts and law to the court. Myers J. referred to Rule 39.01(6), which provides that “Where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.”
Myers J. noted that ex parte motions are an exception to the adversarial system and require special considerations. “The regular zeal that is perfectly appropriate in the face of an equally zealous adversary does not apply when a party chooses to go before a judicial officer without anyone else present to keep his or her zealousness in check.” The duty to make full and fair disclosure replaces the checks and balances of the adversarial system. As another judge observed, “There is no situation more fraught with potential injustice and abuse of the Court’s powers than an application for an ex parte injunction.”
In concluding, Myers J. stated:
I wish to be clear as well that I am not undermining in the least the law that accepts that moving without notice for a CPL is the norm. However, parties must be mindful of the nature of the enhanced and exacting duties that they undertake when they decide to do so. Sometimes, in face of true urgency, one has no practical alternative. However, parties often do have a choice as to whether they truly need to proceed ex parte. If they do not really need to do so, they may wish to consider whether it is worth the risk.
The test for a CPL is not a difficult test to meet. A plaintiff starts from the position of an aggrieved party seeking the court’s protection. That is a favourable strategic position to occupy. However, on a motion to set aside an order obtained without notice due to a breach of the duties to make full and fair disclosure, the plaintiff is no longer seen as the aggrieved party facing a light test. Rather, it becomes the alleged wrongdoer facing a very high standard of performance. While it may be tempting to move without notice to obtain an order without opposition, in my view, it is a questionable strategy to voluntarily undertake the exacting duties of full disclosure and fair disclosure where it is not absolutely necessary to do so.
The consideration of whether to bring a motion without notice applies to other types of motions in addition to motions for CPLs. For example, Orders for Assistance under rule 74.15 can be made without notice. However, the court has cautioned that just because you can, doesn’t mean you should. See our blog on these types of motions, here.
Thank you for reading.
Broadcaster Larry King is once again in the news. This time, he is making news, not reporting on it.
Larry King died on January 21, 2021, at the age of 87. He left a will made in 2015. However, he apparently made a new, handwritten will dated October 17, 2019, just two months after he filed for divorce from his seventh wife, Shawn Southwick King. They were married for 22 years. In the codicil, he left his estate to his five children (two of whom died after the 2019 will was written) and cut Shawn out of his estate plan.
Shawn is now challenging the validity of the 2019 will. Shawn alleges that Larry King was of “questionable mental capacity” when the 2019 will was signed, and was subjected to undue influence from Larry King Jr. Shawn also alleges that the terms of the 2019 will violate the terms of two postnuptial agreements entered into by Larry King and Shawn
There is also a contest as to who should be appointed as estate trustee. Larry’s son, Larry Jr. is asserting that he be appointed as administrator. Shawn is also claiming entitlement to be administrator. Shawn is claiming that although Larry King filed for divorce, he was not pursuing it, and the couple was still speaking, engaged in counselling and there was a possibility of reconciliation. She argued that Larry Jr. was never involved in Larry King’s career or business. Apparently, Shawn was named as administrator in the 2015 will.
Larry King’s estate is estimated as having a value of $2m US.
Larry King was once quoted as saying, “Getting your house in order and reducing the confusion gives you more control over your life. Personal organization somehow releases or frees you to operate more effectively.” Unfortunately, his estate plan may not have been fully in order.
Thank you for reading.
A recent question on Jeopardy! led me to look into the phrase “last will and testament”.
We all know what a will is. It is a legal document that sets out the testator’s wishes with respect to the disposal of his or her property upon his or her death. A testament is the same thing.
Commonly, a will is referred to as a “last will and testament”. Why the apparent redundancy?
The phrase is a historical reference to a period when English law and French law language were both used for maximum clarity. The phrase is a “legal doublet”. Other legal doublets include “cease and desist”, “part and parcel”, “terms and conditions” and “break and enter”. The list goes on and continues.
Diving deeper, the legal doublet “last will and testament” is an “irreversible binomial”: words that must be used together in a certain order. One would never refer to a “testament and last will”, much as one would never refer to “cheese and macaroni”, “abet and aid” or “void and null”.
Another theory as to why we refer to a “last will and testament” is that, historically, a will dealt with real property while a testament dealt with personal property. This theory has been debunked.
Still another theory is that, historically, lawyers and clerks were paid by the word. Why use one word when you can get paid for several?
Thank you for reading. Have a safe long weekend. As a client told me, stay positive and test negative!
Eric Schwam died on December 25, 2020, at the age of 90. He died leaving a will that provided a substantial bequest to the French village of Chambon-sur-Lignon. The gift was in thanks for the village’s assistance to Schwam and his family who were sheltered in the village during World War II as they escaped Nazi persecution.
According to a news report in The Times of Israel, Schwam and his family, originally from Austria, were taken in by the village townsfolk. They were amongst over 2,500 Jews harboured by the village during World War II. Previously, the village was honoured by Israel’s Yad Vashem Holocaust Remembrance Center as “Righteous Among the Nations”. (According to the Yad Vashem website, 3,000 to 5,000 Jews were protected by the village.) The village has received other such honours.
Schwam’s family arrived in Chambon-sur-Lignon in 1943, and were hidden in a school. The family remained in the village until 1950. Schwam then left the village, and studied pharmacy.
The mayor declined to state how much was given to the village of 2,470 (as of 2017). However, it is estimated that the gift was of $2m Euros. The funds are to be used for educational and youth initiatives, including scholarships.
Sometimes good deeds go unpunished.
Have a great weekend.