Author: Paul Emile Trudelle
In a recent recording, “Money in the Grave”, Drake asks that he be buried with his money. He sings:
In the next life, I’m tryna stay paid
When I die, put my money in the grave.
Several issues come to mind.
First, Drake’s wish to be buried with his money is not binding on his estate trustee unless it is in a properly executed testamentary instrument.
Second, even if the money is buried with Drake, his estate trustee may have to pay Estate Administration Tax on the buried money if the will is to be probated. Drake may want to consider multiple wills. (Well-considered primary and secondary wills might also avoid the payment of Estate Administration Tax on the value of all of his chains, and other bling.)
Third, the act of destroying money is illegal in many jurisdictions. In Canada, under the Currency Act, it is illegal to “melt down, break up or use otherwise than as currency any coin that is legal tender in Canada”. The Criminal Code creates an offence for defacing a current coin. There is no similar prohibition on defacing or destroying paper money. However, in the US, burning money or any other act that renders a note “unfit to be reissued” is illegal. Arguably, the act of burying money is not the same as destroying money.
(Read Stuart Clark’s blog, here, about a woman who cut up the equivalent of $1.4m CDN to disinherit her heirs.)
Fourth, Drake’s estate trustee might be accused of waste. He or she may want to seek the opinion, advice or direction of the court before they “Bury my [expletive] Chase Bank.”
More on point, in the US decision of Eyerman v. Mercantile Trust Co., 524 S.w.2d 210 (1975), the testator directed that her house be burned down, the lot sold, and the proceeds added to the residue of her estate. A neighbour wasn’t too crazy about the idea, and applied for an injunction. The injunction was, at first, denied. On appeal, the court held that the direction in the will was against public policy.
The court in Eyerman cited the decision of In re Scott’s Will, 88 Minn. 386 (1903). There, the testator directed his estate trustee to destroy money belonging to the estate. The court there found that the clause was void. The court also quoted from Restatement, Second, Trusts, 124, at 267.
“Although a person may deal capriciously with his own property, his self interest ordinarily will restrain him from doing so. Where an attempt is made to confer such a power upon a person who is given no other interest in the property, there is no such restraint and it is against public policy to allow him to exercise the power if the purpose is merely capricious.”
In Restatement, an example is given of a bequest from A’s estate to B in trust to throw the money into the sea. (Query: more lyrical or less lyrical than Drake’s direction?) “B holds the money upon a resulting trust for the estate of A and is liable to the estate of A if he throws the money into the sea.”
In another, earlier Drake ditty, “Crew Love”, Drake boasted about spending $50K on a vacation, and needing restaurant reservations for twenty. “I never really been one for the preservation of money. Much rather spend it all while I’m breathing.” It seems that he now has so much money that he may not be able to spend it all while living, and he is turning his thoughts to succession planning. He may want to get some professional estate planning advice.
Thank you for reading.
In the Ontario Court of Appeal decision of R. v. Nurse, 2019 ONCA 260, the gestures of a dying man were relied upon to support a murder conviction.
In that case, N owed rent money to his landlord, K. Rather than pay, N lured K to his home, where K was repeatedly and viciously stabbed.
N denied that he was involved in the stabbing, and claimed that another unknown person had stabbed K.
While K was being treated by police on the scene, N approached K and the police. K, who was in obvious and extreme distress, pointed to his stomach stab wounds, and then pointed to N.
The trial judge found that the gesture fell within the “dying declaration” exception to the hearsay rule. The Court of Appeal agreed. They also agreed that evidence of the gesture was admissible under the principled approach to hearsay.
A dying declaration is usually a verbal statement or utterance. However, a gesture can also convey meaning, and may be considered to be a statement or utterance to which the dying declaration exception to the hearsay rule applies.
With respect to the dying declaration exception to the hearsay rule, the Court of Appeal said that the exception could be traced back to the 1789 decision of The King v. Woodcock. There, the court stated:
Now the general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.
The trial judge was therefore correct in instructing the jury to consider the evidence of whether K was pointing to N, and if he was, what he meant by this.
Another ground of appeal was with respect to incriminating messages retrieved from N’s cell phone. When N was first arrested, his phone was seized. An analysis of the data on the phone revealed only limited interaction between N and his co-accused. However, about a year later, the analysis software was updated, and a further analysis of the phone revealed the plan to kill K. N argued that the second analysis was a fresh search that was not authorized by the first search warrant. This argument was rejected.
Have a great weekend.
Ian’s questions and answers from Wednesday’s blog on various topics, including death and golfing, led me to consider another issue: people dying on a golf course.
One of my favourite scenes from my favourite movie, Caddy Shack, involves a Bishop playing the best round of golf of his life in a raging rainstorm. When asked if play should continue, greens keeper Carl Spackler (Bill Murray) advises: “I’d keep playing. I don’t think, the heavy stuff’s going to come down for quite a while.” The Bishop plays on, misses his final putt, and turns to curse the sky, whereupon he is struck by lightning. See the clip, here.
Although the Bishop lived (but renounced God), many others have not been as lucky.
According to Golfsupport.com, golfing (with 1.8 injuries per 1,000 people) is more dangerous than rugby (only 1.5 injuries per 1,000). In the U.S., golf carts are responsible for 15,000 injuries per year. 40,000 golfers seek treatment each year for injuries caused by errant golf balls and flying club heads.
Golf Digest has published a list of “The 10 Worst Ways To Die On a Golf Course”. These include:
- A man who was fatally kicked in the chest when a group of golfers lost patience with the man while he was searching for a lost ball.
- A man in Ireland who died after a rat ran up his leg, urinated and bit him while the man was searching for his ball in a ditch. The rat carried the fatal Weil’s disease.
- A man who died after slamming his club against a bench after a poor shot. The club shattered, and a piece of the club pierced his chest.
After making her will, the deceased “whited-out” the name of a beneficiary using white-out or liquid paper. Was this an effective amendment to the will?
This question was answered in Levesque Estate (Re), 2019 BCSC 927 (CanLII). There, the deceased made a formal will which left the residue of her estate to 7 beneficiaries. However, at some point between the making the will and her death, the deceased obscured the name of one of her beneficiaries using white-out. The estate trustees applied to the court for the opinion of the court with respect to whether this “alteration” was effective.
Applying B.C. law, the court determined that the alteration would be effective if either the alteration made the word or provision illegible, or if the alteration was deemed by the court to represent the intention of the deceased to alter the will.
With respect to the first test, the court found that the whited out provision did NOT render the name beneath to be “impossible to read by ordinary inspection … without chemical or other analysis”. Therefore, the alteration was not valid on this basis.
(In another case out of Newfoundland, the court held that provisions were “whited out” to the extent that “no part of the previous text [was] apparent”. Apparently, the testator used a heavier hand when whiting out. In that case, the whiting out of the text was found to be an effective revocation.)
In Levesque, however, the court went on to apply the second test of substantial compliance, and found that the alteration was a “deliberate or fixed and final expression of the Deceased’s intention” to remove the beneficiary from her will. “Carefully dabbing white-out over the provision in question was undoubtedly a considered and deliberate act on the part of the Deceased. She was applying the white-out to the original Will. It was not a casual act. The only reasonable inference is that her intention was to remove the provision from the Will.” The court was able to use its curative powers to give effect to the alteration.
In giving effect to the alteration, the court applied s. 58 of B.C.’s Wills, Estates and Succession Act, which gives the court authority to give effect to the alteration of a will even if there is not strict compliance with the formal requirements of the Act. In Ontario, there is no similar “substantial compliance” provision. It is not clear that the whited-out changes would have been effective in Ontario.
For another blog on white-out and wills, see “Revocation of Wills: White Out of this World”.
Have a great weekend.
In Ontario, by reason of s. 17(2) of the Succession Law Reform Act, if a testator’s marriage is terminated by a judgment absolute of divorce or is declared a nullity, any devise or bequest to his or her former spouse, any appointment of his or her former spouse as estate trustee, or any grant of a power of appointment to his or her former spouse is revoked, and the will is to be construed as if the former spouse had predeceased the testator.
This is subject to a contrary intention appearing in the will.
This provision was enacted in 1974. Prior to that, bequests to a former spouse remained valid until the testator made a new will, revoked the will, or remarried. (S. 16 of the SLRA provides that a will is revoked by marriage, subject to certain exceptions.)
In Page Estate v. Sachs (H.C.J.), 1990 CanLII 6903, the court had to grapple with the question of the retrospective application of this section. There, the testator made a will in 1968. The will gave the estate to the testator’s spouse. The testator and his spouse were divorced in 1974. The testator died in 1986. The question for the court was whether s. 17(2) would apply in those circumstances.
The court found that s. 17(2) has retrospective application. The gift to the spouse was revoked. The testator’s estate was distributed as if the former spouse had predeceased.
In the decision, the judge quoted from the “Report On The Impact of Divorce on Existing Wills” by the Ontario Law Reform Commission. It was said that s. 17(2) “represents remedial reform legislation in aid of those former spouses who neglect to alter their wills following a divorce and thereby bestowed upon their former spouse unintended windfall benefits.” The judge went on to observe that the section “simply asserts the finality which a decree absolute renders to the relationship and status of the former spouses and ties up any inadvertent loose ends which could resurrect the spousal status.”
Note that the provision only comes into play where there is a divorce or the marriage is declared a nullity. Separated spouses should “tie up any loose ends” and ensure that they consider revising their will upon separation. My first exposure to estates law involved a matter where a wife moved to divorce her husband. The husband was so irate that he vowed that she would not get anything from him in the divorce, and committed suicide. He did not revise his will. As a divorce had not yet been granted, his entire estate passed to his wife, which was clearly contrary to his intentions.
Don’t leave your ends loose.
As spring leans toward summer, many begin to think about spending time sitting on a dock. While sitting on a dock (or a patio, if that is more your thing), consider the recent decision of Krieser v. Garber,  O.J. No. 1619.
In 2012, the Garbers decided to build a dock attached to their property on Lake Simcoe. They retained Nealon Wood Products to do so. It must have been a nice dock. The cost was $150,000.
Unfortunately, the dock was not built according to Ministry of Natural Resources-approved plans. It was built 17 feet to the west of where it was supposed to be. Boulders placed around the dock for ice protection extended over the projected lot line of Garbers’ neighbour, the Kriesers. While the placement of the dock improved the view of the Garbers, it did not improve the Kriesers’ view. Additionally, it interfered with the Kriesers’ ability to access their own property by boat.
At trial, the court found that injunctive relief was appropriate. The Garbers were ordered to remove the dock from its current location, and repair the lake bed. In addition, the Garbers and Nealon were ordered to pay the Kriesers $100,000 in punitive damages.
On the issue of costs, reported here, the court awarded the Plaintiff costs of $518,000 for the two week trial, payable by the Garbers and Nealon, jointly and severally. The Garbers were ordered to pay an additional $80,000 for costs “thrown away” in relation to an earlier adjournment of the trial.
In awarding costs, the court noted that the Plaintiff had made a very reasonable offer to settle. The offer was, according to the judge, “the most generous offer to settle I have ever seen”.
In their offer, the Kriesers offered to pay for all of the costs of having the dock and the protective boulders moved. It was estimated that this costs could be in the $150,000 range. This “with prejudice” offer was relied on, in part, to support an award of substantial indemnity costs. It also was a factor in the award of punitive damages.
Thanks for reading. Have a great weekend.
On May 5, 2019, CBC reported on a story of a lawyer who had his cell phone and laptop seized by the Canada Border Services Agency when he refused to give them his passwords.
According to the report, Nick Wright was returning to Canada after a 4 month trip to Guatemala and Colombia. After his bags were searched, the Canada Border Services officer asked for the passwords to his phone and laptop, so that they could be searched as well. Wright refused, telling the officer that his devices contained confidential solicitor-client information. His devices were then confiscated, to be sent to a government lab which would try to determine the passwords and search the files.
According to Canada Border Services, digital devices are classified as “goods”, and Canada Border Services is allowed to examine the goods, including any electronic files on the device, for customs purposes. If a traveller refuses to reveal their password, Canada Border Services may seize the device. According to the policy manual, although an arrest would “appear to be legally supported, a restrained approach will be adopted until the matter is settled in ongoing court proceedings.”
U.S. customs and border protection officials have similar rights to search devices. Refusal to disclose passwords may result in confiscation or a denial of entry.
Such digital device searches do not occur frequent. In the 17 months between November 2017 and March 2019, 19,515 travellers entering Canada (0.015% of all travellers) had their digital devices examined by Canada Border Services.
The Canadian Bar Association warns about the risks of such searches to lawyers. Lawyers have a duty to keep client communications private. This applies to all information about a client or former client. The duty extends to staff, as well. “Your client has a right to privacy which requires you not to disclose to anyone, with exceptions, when any communications between you relate to legal advice sought or given.”
The Canadian Bar Association says that a breach could result in a loss of client trust, a client lawsuit for negligence, an E&O claim, disciplinary action and public criticism.
The Canadian Bar Association suggests that when crossing a border, lawyers should travel with a “clean device”. They should use cloud technology to store any solicitor-client information. Lawyers should erase all privileged information from their devices, including contact lists with clients’ names, addresses and contact information. The search by border services does not allow them to access information on the cloud. Once across the border, this information can easily be reinstalled from the cloud.
In Daniel Estate (Re), 2019 ONSC 2790 (CanLII), the applicants applied to have their estate trustee and attorneyship accounts passed. As stated by the judge hearing the application, “Unlike many applications to pass accounts, this is a “good news” story.”
The applicants were the friends and former neighbours of a high net worth, elderly couple, Isabel and Wayne. For over 20 years, the applicants provided extensive personal assistance to the elderly couple. “In many ways, [the applicants] acted like loyal and dutiful family members.” In addition to completing simple neighbourly tasks, the applicants helped the couple in many other ways. They eventually became the attorneys for property and personal care for the couple. When Wayne died, the applicants took on the role of acting as his Estate Trustee.
The application to pass accounts was supported by an affidavit from Isabel, who indicated that she was content with the claim for compensation being made by the applicants. The application materials also included an accounting analysis prepared by a Chartered Accountant, who reviewed the accounts in detail, and also an analysis by a Certified Case Manager and Certified Canadian Life Care Planner, who assessed the value of the personal services provided by the applicants.
In the end, the court awarded the applicants compensation for administering Wayne’s estate of $129,775; compensation for acting as attorneys for property of $435,772.36 and compensation for acting as attorneys for personal care, for a total of $757,659.
With respect to costs, the court awarded the applicants their costs of $125,021 for the unopposed passing of accounts. According the judge, “While this amount seems at first blush high, I note the accounting report alone was worth $45,000. In my view of the detailed, thorough and helpful material filed and in view of the hours it took to assemble, digest and present the financial information provided, I find that the fees and disbursements claimed are reasonable.”
The court appears to have been impressed by the extent and quality of the assistance provided by the applicants to Isabel and Wayne. Further, the court appears to have been impressed with the detailed and extensive materials put before the court in order to justify the claims on the passing.
Thanks for reading.
What a weekend we have coming up! So many things to celebrate! Consider participating in some of the following revelries:
- Cinco de Mayo:
This celebration is held on, you guessed it, the 5th of May. The date is to commemorate the Mexican Army’s victory over the French in the Battle of Puebla on May 5, 1862. Mexico’s smaller force defeated the larger French force, serving as a significant morale booster. Unfortunately for Mexico, the French forces were victorious a year later, when the French won the Second Battle of Puebla, and took control of Mexico City.
Cinco de Mayo is not to be confused with Mexico’s Independence Day, which is celebrated on September 16.
- Cinco de Cuatro
This celebration on May 4th was created by the Bluth family on “Arrested Development” in retaliation to Cinco de Mayo. The Bluths, and in particular, Lucille Bluth, were upset that their Hispanic staff were not showing up for work on May 5th. They therefore created a holiday for the evening before Cinco de Mayo, designed to use up all of the party supplies and food the night before.
- Star Wars Day
May the fourth. Get it?
- Beer Pong Day
Beer Pong Day is observed on the first Saturday of May. Apparently, this day was first organized in 2006 at the University of Arizona. (However, there is conflicting information about the date. Another site states that Beer Pong Day is July 6, while yet another site (albeit Australian) says that January 5 is Beer Pong Day AND Bikini Day.)
Other May the 5th holidays include:
- Cartoonist Day
- International Bereaved Mother’s Day
- Childhood Stroke Awareness Day
- International Midwives Day
- International Permaculture Day
- Lemonade Day
- Motorcycle Mass and Blessing of the Bikes Day
- Mayday for Mutts
- Museum Lover’s Day
- Oyster Day
- National Infertility Survival Day
- National Silence the Shame Day
- National Hoagie Day
- Revenge of the Fifth (A sequel to May the Fourth)
It is also my birthday.
Lots of reasons to celebrate. Have a great weekend! Salud!
In estate litigation, medical records are key sources of evidence with respect to the capacity of the deceased. In most cases, the parties seek and obtain an order for their disclosure at an early stage. The order serves to waive any doctor-patient privilege that would otherwise attach to the records.
Litigants and their lawyers must, in most cases, be careful to ensure that such an order is in place prior to seeking such medical records. Doctors, too, must ensure that such an order has been obtained and that they are therefore authorized to release the medical records.
A recent decision, Smith v. Muir, illustrates the possible perils of improperly seeking medical records. That case involved a motor vehicle accident. Trial was approaching and defence counsel wrote to two of the Plaintiff’s doctors. Defence counsel served them with a summons to attend at trial, and also the following request: “We will require an entire copy of your file for preparation of this matter for trial. Would you please forward to us a complete copy of the entire contents of your file, including … . Should you be unable to provide us with this documentation, please ensure that you bring your original complete records with you upon your scheduled attendance at trial.”
The Plaintiff learned of this, and then moved to have defence counsel removed as lawyer of record. While the court did not remove counsel, it was highly critical of the defence lawyer’s conduct. The court stated that the request for medical records directly from the Plaintiff’s doctors, rather than through the Plaintiff’s lawyer or through the court, was inappropriate. The court noted that the letters did not indicate that defence counsel did not have the Plaintiff’s consent to disclosure, or that the doctor may wish to seek advice before disclosing. The letter, said the court, “invites the unwitting health practitioner to breach his or her duty of confidentiality and the privacy of the patient”.
The court referred extensively to the decision of Burgess v. Wu, which sets out the appropriate protocol to follow for obtaining medical records. The appropriate routes are either through the discovery provisions of the Rules, or through a disclosure order from the court. Otherwise, “A plaintiff’s health care professional has a duty to refuse to disclose information about his or her patient unless required to do so by law”.
Although the Plaintiff’s motion was unsuccessful, the court awarded the Plaintiff her costs.
In estates litigation, matters are complicated due to the fact that the patient is no longer able to consent to disclosure, and there often isn’t an estate trustee who can consent. In those cases, an order is almost always required.
Have a great weekend.