Author: Stuart Clark
The notes and records of the lawyer who assisted the deceased with their estate planning can play an important role in any estate litigation. As a result, it is not uncommon for a drafting lawyer to receive a request from individuals involved in estate litigation to provide them with a copy of their notes and files relating to the deceased’s estate planning. But can the lawyer comply with such a request?
The central concern involved for the lawyer is the duty of confidentiality which they owe to the deceased. This duty of confidentiality is codified by rule 3.3-1 of the Law Society of Ontario’s Rules of Professional Conduct, which provides:
“A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.”
The duty of confidentiality and privilege which is owed to the deceased by the lawyer survives the deceased’s death. This was confirmed by the court in Hicks Estate v. Hicks,  O.J. No. 1426, where, in citing the English authority of Bullivant v. A.G. Victoria,  A.C. 196, it was confirmed that privilege and the duty of confidentiality survive death, and continues to be owed from the lawyer to the deceased. With respect to the question of who may waive privilege on behalf of the deceased following their death, Hicks Estate v. Hicks confirmed that such a power falls to the Estate Trustee under normal circumstances, stating:
“It is clear, therefore, that privilege reposes in the personal representative of the deceased client who in this case is the plaintiff, the administrator of the estate of Mildred Hicks. The plaintiff can waive the privilege and call for disclosure of any material that the client, if living, would have been entitled to from the two solicitors.”
Simply put, the Estate Trustee may step into the shoes of the deceased individual and compel the release of the lawyer’s file to the same extent that the deceased individual could have during their lifetime.
In circumstances in which the validity of the Will has been challenged, the authority of the Estate Trustee is also being challenged by implication, as their authority to act as Estate Trustee is derived from the Will itself. In such circumstances, the named Estate Trustee may arguably no longer waive privilege and/or the duty of confidentiality on behalf of the deceased individual. Should the notes and/or records of the drafting lawyer still be required, a court order is often required waiving privilege and/or the duty of confidentiality before they may be produced.
Whether or not a lawyer can release their file following the death of a client will depend on the nature of the dispute in which such a request is being made, and who is making the request. If there is a challenge to the validity of the Will or the Estate Trustee’s authority, it is likely that a court Order will be required before the lawyer may produce their file regardless of who is requesting the file. If the dispute does not question the Estate Trustee’s authority, such as an Application for support under Part V of the Succession Law Reform Act, the lawyer should comply with the request to release their file so long as the requesting party is the Estate Trustee. If the requesting party is not the Estate Trustee, and the Estate Trustee should refuse to provide the lawyer with their authorization to release the file, matters become more complicated, and may require a court Order before the lawyer may release their file.
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When concerns are raised about the conduct of an Attorney for Property, those raising the concerns often seek an Order compelling the Attorney for Property to commence an Application to Pass Accounts pursuant to section 42 of the Substitute Decisions Act. Should such an Application to Pass Accounts be commenced, the objecting party will often make allegations against the Attorney for Property that the incapable person and/or estate has suffered damages as a result of the Attorney for Property’s conduct, often seeking monetary damages against the Attorney for Property in relation to such objections.
An interesting question was recently posed to me in the context of such an Application to Pass Accounts for an Attorney for Property. Can the objecting party pursue damages against the Attorney for Property within the actual Application to Pass Accounts itself, or do they need to commence a separate claim against the Attorney for Property for the recovery of such damages?
The ability to pursue damages against an Estate Trustee within the Application to Pass Accounts process is well established by statute, with section 49(3) of the Estates Act providing:
“The judge, on passing any accounts under this section, has power to inquire into any complaint or claim by any person interested in the taking of the accounts of misconduct, neglect, or default on the part of the executor, administrator or trustee occasioning financial loss to the estate or trust fund, and the judge, on proof of such claim, may order the executor, administrator or trustee, to pay such sum by way of damages or otherwise as the judge considers proper and just to the estate or trust fund, but any order made under this subsection is subject to appeal.” [emphasis added]
Section 49(3) of the Estates Act makes it clear that a separate claim against an Estate Trustee is not necessary to pursue damages for breach of trust when an Application to Pass Accounts has been commenced, and that the Judge may order damages against the Estate Trustee within the actual Application to Pass Accounts itself. Perhaps importantly however, the Estates Act appears to suggest that section 49 only applies to a passing of accounts for an “executor, administrator or trustee under a will“, making no reference to an Attorney for Property. Sections 42(7) and 42(8) of the Substitute Decisions Act also set out the “powers of the court” in an Application to Pass Accounts for an Attorney for Property, with such provisions notably containing no reference to the ability to order damages against the Attorney for Property for any wrongdoing.
As there appears to be no statutory equivalent to section 49(3) of the Estates Act which specifically contemplates that it applies to Attorneys for Property, and the ability to pursue damages within the Application to Pass Accounts itself in other circumstances appears to be derived from statute, the question of whether there is a “legislative gap” as it relates to the ability to pursue damages against an Attorney for Property within an Application to Pass Accounts can at least appear to be raised. If such a “legislative gap” does exist, would this mean that a separate claim would have to be commenced by the objector to pursue such damages even when an Application to Pass Accounts was currently before the court?
When I have raised the question to other estate practitioners, some have suggested that while there may be no statutory authority to order such damages against the Attorney for Property within the Application to Pass Accounts, the court may have inherent jurisdiction to order such damages by way of a “surcharge order” in the Application to Pass Accounts. Some have also suggested that as section 42(6) of the Substitute Decisions Act contemplates that the procedure to be utilized on passing an Attorney’s accounts is to be the same as that as an executor’s accounts, that this should be read as evidence to show that section 49(3) of the Estates Act would apply to the passing of an Attorney for Property’s accounts. In response to this, I would suggest that it is at least questionable if section 49(3) of the Estates Act is “procedural” in nature, and, even if it is found to be procedural, whether the “powers of the court” provisions of sections 42(7) and 42(8) of the Substitute Decisions Act, which notably does not include the power to award damages against the Attorney for Property for wrongdoing, would trump section 49(3) of the Estates Act in any event.
I am aware of no decision which specifically addresses the issue of whether there is a “legislative gap” when it comes to whether damages can be sought against an Attorney for Property within the Application to Pass Accounts itself. While the issue may simply be academic at this time, it is not unforeseeable that someone could attempt to argue that an objector cannot seek damages against the Attorney for Property within the Application to Pass Accounts itself, and that a separate claim is required. If such an argument is successfully raised, and the length of time between the alleged wrong and the separate claim being commenced was such that the limitation period may have expired, it is not unforeseeable that the Attorney for Property may attempt to argue that the separate claim must now be dismissed as a result of the expiry of the limitation period.
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It is not uncommon for dependant’s support claims to be commenced contemporaneously with family law claims after death, with the dependant’s support claim often forming a sort of safety net should the family law claim not be successful. This is likely in part on account of section 63(4) of the Succession Law Reform Act providing that an Order providing for the support of the deceased’s dependants can be made “despite any agreement or waiver to the contrary“, such that the court in certain circumstances can make an Order for dependant’s support notwithstanding that agreements such as marriage contracts may have been entered into prior to death which may otherwise have severely restricted the surviving spouse’s entitlements.
While it is not uncommon for family law and estates claims to be brought contemporaneously, this can sometimes result in an in issue in the form of a multiplicity of proceedings, with multiple proceedings being before the court at the same time, often on different court lists. In Toronto, the family law claims would likely proceed before the Family Court, which is governed by its own “Family Law Rules“, while the estate law claims would proceed before the Estates List of the Ontario Superior Court of Justice, with such a process being governed by the more standard Rules of Civil Procedure. Different courts, different rules, different timelines.
It appears that such a multiplicity of proceedings became an issue in the recent Cohen v. Cohen decision, with the Applicant’s counsel eventually moving to have the family law and estate law proceedings consolidated and heard together before the Family Court. Opposing counsel objected, taking the position that a dependant’s support Application under Part V of the Succession Law Reform Act could not be heard before the Family Court, and that such a proceeding must proceed before the standard Ontario Superior Court of Justice.
In ultimately rejecting the position of opposing counsel, and ordering the family law claims and the estate law claims to be heard together before the Family Court, Justice Maranger provides the following commentary:
“Counsel representing the estate argued that a strict reading of section 57 (1) of the Succession Law Reform Act (“court” means the Superior Court of Justice) statutorily precludes consolidating a dependant’s relief application with a family law act application, because the SLRA does not specify Superior Court Family Branch. I reject that argument, clearly a reference to the Superior Court of Justice can in certain circumstances allow for the reading in of the Superior Court Family Branch. A family branch judge is a Superior Court judge for all purposes including hearing cases under the Succession Law Reform Act.”
Cohen v. Cohen suggests that estates law cases and family law cases can be consolidated and heard together by the same court notwithstanding that such courts may be specialized for a different purpose. What impact, if any, the use of the Family Law Rules would have upon adjudication of an Application for support under Part V of the Succession Law Reform Act remains to be seen.
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There is a famous scene in Monty Python and the Holy Grail where an individual tries to include his very much still alive relative on a cart carrying out plague victims to the still alive individual’s protests. Upon being presented to be taken away, the individual loudly protests “I’m not dead yet” to the annoyance of the individual trying to have them taken away, resulting in a back-and-forth about whether they will be dead soon and should still be included on the cart. Hilarity ensues.
This scene from Monty Python always plays through my mind whenever I hear stories of individuals who are incorrectly declared dead by the court. The Toronto Star recently reported on a case about a man from Romania who returned from working abroad to find that his wife had had him declared dead by the court while he was away. Despite showing up to his own hearing to reverse the Order declaring that he was dead, the court refused to reverse the Order, saying that it was too late for him to do so. Stories such as these are surprisingly common, with an Ohio man having found himself in similar circumstances in 2013.
In Ontario, the process by which an individual is declared dead in absentia when there is no body is governed by the Declarations of Death Act, 2002. Although the Declarations of Death Act does not set out a process by which an individual who is still alive could reverse an Order finding that they were deceased, it notably does not contain any provision barring the reversal of such an Order, and does contain language providing what is to occur with the “deceased” individual’s property should they later found to be alive such that it appears that such an Order is possible.
Section 6(1) of the Declarations of Death Act provides that when an Order has been made declaring an individual dead, and their estate has been distributed, such a distribution is final even should the “deceased” individual subsequently be found to be alive. While section 6(3) grants the court special powers to order specific property be returned to the deceased individual, absent a specific court order to the contrary, the “deceased” individual’s property is now the property of those to whom it was distributed.
While it appears the Ontario court can reverse an Order incorrectly finding you to be deceased, you may not be so lucky in getting your stuff back. Maybe now we know why the man was so loudly protesting “I’m not dead yet” in the Monty Python sketch.
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When I was a kid I loved the song “I’m my own grandpa” from the Muppets. For those of you unlucky enough not to have grown up with such a lyrical masterpiece, the song tells the tale of someone who, as a result of his father marrying his wife’s daughter from a previous relationship, becomes his own grandfather. It is a masterpiece up there with the likes of any of Beethoven’s symphonies.
The song recently came flooding back into my memory when a question was posed to me regarding the inheritance rights of first cousins on an intestacy who, as a result of a quirk in the marriage patterns of their relatives, were first cousins to the deceased both on their maternal and paternal sides. The question which followed is, if you are a first cousin of an individual on both sides of the family, does that mean that you are entitled to double the inheritance in circumstances in which the estate is to be distributed to the first cousins on an intestacy?
The “double cousining”, if it can be called that, occurred as a result of one of the deceased’s father’s brothers marrying one of the deceased’s mother’s sisters. The children born to such a couple are first cousins of the deceased both on their maternal and paternal sides.
The issue of whether a “double cousin” receives twice the inheritance on an intestacy to those cousins unlucky enough to have only been related to the deceased once was dealt with by the court in Re Adams, (1903) 6 O.L.R. 697 (Ont. H.C.). In ultimately concluding that the “double cousins” do not receive double the inheritance, and that all cousins receive the same amount, Justice Meredith states the following:
“Under the Devolution of Estates Act all the property in question is to be distributed as personal property is now distributable. And among collateral relatives in the same degree of kinship it is so distributable equally. They take in their own right, not by way of representation. And there is no question of quantity or quality of blood; those of the half-blood take equally with those of whole blood; and those of the double blood — if I may so name a relationship, in the same degree, on the part of both father and mother — take no more, for all are akin to the intestate, and all in the same degree of kinship.” [emphasis added]
Re Adams suggests that being a “double cousin” does not result in double the inheritance, and that a cousin related to the deceased both on the maternal and paternal sides receives the same as if they had only been related to the deceased once. Those of you looking to explore unorthodox family trees in a goal to maximize potential distributions to you on an intestacy will have to look elsewhere.
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Over the holidays I had a great nostalgia trip watching the recent Netflix series “The toys that made us” about the history of toys. One of the episodes focused on “He-Man and the Masters of the Universe“. For those of you who did not grow up in the 1980s, the titular character had a habit of loudly proclaiming “I have the power” right before getting down to business and saving the day. I feel like loudly proclaiming “I have the power” is as good a segue as any to discuss the general principles surrounding the rule in Saunders v. Vautier.
The term “Saunders v. Vautier” is often thrown around by estates lawyers as if it is a foregone conclusion that everyone in the room, including clients, should instinctively know what is meant by the phrase. This, of course, is not always the case. For those needing a general refresher look no further.
When lawyers mention the rule in “Saunders v. Vautier” it is often done in reference to a scenario wherein a beneficiary is not to receive certain property until a specific age, however as the provision providing for the gift does not contain a “gift-over” to another beneficiary should the originally named beneficiary not reach the specified age, the beneficiary immediately demands receipt of the gift upon attaining 18 years of age thereby collapsing the trust. While the rule in Saunders v. Vautier can be utilized in such a scenario, it would be a mistake to assume that this is the only scenario in which the rule in Saunders v. Vautier may be utilized, as the potential applications of the rule are much more expansive than this.
At its most expansive the rule in Saunders v. Vautier can be thought of as the rule which allows a beneficiary(s) to ignore the testator’s/settlor’s intentions and vary the terms of a trust. It stands for the proposition that if all potential beneficiaries of a trust, collectively representing 100% of the potential “ownership” of the assets of the trust, unanimously direct that the trust is to be wound up and/or varied, the trustee(s) must act in accordance with the beneficiaries’ direction regardless of whether such direction goes against the testator’s/settlor’s “intention” in establishing the trust. As summarized by the Supreme Court of Canada in Buschau v. Rogers Communications Inc.:
“The common law rule in Saunders v. Vautier can be concisely stated as allowing beneficiaries of a trust to depart from the settlor’s original intentions provided that they are of full legal capacity and are together entitled to all the rights of beneficial ownership in the trust property. More formally, the rule is stated as follows in Underhill and Hayton: Law of Trusts and Trustees (14th ed. 1987), at p. 628:
If there is only one beneficiary, or if there are several (whether entitled concurrently or successively) and they are all of one mind, and he or they are not under any disability, the specific performance of the trust may be arrested, and the trust modified or extinguished by him or them without reference to the wishes of the settlor or trustees.”
If even one beneficiary of the trust, however remote their interest may be, should refuse to consent to the proposed variation, the rule in Saunders v. Vautier may not be utilized and the trust must continue to be administered as settled. If one of the potential beneficiaries of the trust is under a legal disability, whether as a result of being a minor or otherwise, the principles from Saunders v. Vautier may still be utilized, however the consent of the beneficiary under a legal disability must be obtained under the Variation of Trusts Act which allows the court to consent to the proposed variation on behalf of the beneficiary under a legal disability. Should the court ultimately provide such a consent, and assuming all remaining “sui juris” beneficiaries have already consented to the proposed variation, all potential beneficiaries would have consented to the proposed variation and the rule in Saunders v. Vautier would be invoked.
Thank you for reading. Wield that power wisely.
Paul Trudelle recently blogged about the Stajduhar v. Wolfe decision of the Ontario Superior Court of Justice, wherein the court was faced with the question of whether two individuals who did not live together in the same residence could meet the definition of “spouse” for the purposes of seeking support after death pursuant to Part V of the Succession Law Reform Act (the “SLRA“). In ultimately concluding in such a decision that the two individuals did not meet the definition of “spouse”, such that the surviving individual could not seek support after death, much emphasis was placed on the fact that the two individuals did not “live” in the same residence. In coming to such a decision, the court stated:
“In conclusion, I find that Branislava has failed to prove that she was a dependent spouse as defined by s. 57 of the SLRA at the time of Jeffrey’s death. The evidence satisfies me that the couple never lived together and thus did not cohabit for any period of time.” [emphasis added]
But is such a finding in keeping with the previous case law on the subject? Do two individuals need to live in the same residence to be considered “spouses” within Part V of the SLRA?
The definition of “spouse” within Part V of the SLRA includes two people who have “cohabited” continuously for a period of not less than three years. “Cohabit” is in turn defined as “to live together in a conjugal relationship, whether within or outside marriage“. When read together, to meet the “common law” definition of spouse in Part V of the SLRA two people must live together in a conjugal relationship continuously for a period of not less than three years.
As the words “live together” are contained in the definition of spouse, when read in its literal sense it would appear self-evident that two individuals must “live together” in the same residence to be considered common law spouses. Importantly however, this is not how the court has historically interpreted the subject.
Prior to Stajduhar v. Wolfe, the leading authority on what was meant by two individuals “living together in a conjugal relationship” was the Supreme Court of Canada’s decision of M. v. H. In M. v. H., the Supreme Court of Canada confirmed that in determining whether two individuals lived together in a conjugal relationship you are to look to the factors established by paragraph 16 of Molodowich v. Penttinen, which include:
- Did the parties live under the same roof?
- What were the sleeping arrangements?
- Did they maintain an attitude of fidelity to each other?
- Did they participate together or separately in neighbourhood and community activities?
- What was the attitude and conduct of the community towards each of them and as a couple?
The Supreme Court of Canada was clear in M. v. H. that the factors established by Molodowich can be present in varying degrees, and that not all categories must be met for two individuals to be considered spouses. When the Ontario Court of Appeal in Stephen v. Stawecki applied the factors employed by M. v. H. specifically to the question of whether two individuals must live in the same residence to be considered spouses, the court concluded that they did not, and that living arrangements are only one of many factors to consider. In coming to such a conclusion, the Court of Appeal states:
“We agree with the respondent that the jurisprudence interprets “live together in a conjugal relationship” as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship.” [emphasis added]
The recent Stajduhar v. Wolfe decision notably does not contain any reference to Stephen v. Stawecki, nor to the Supreme Court of Canada’s previous consideration of the issue in M. v. H., such that it is not clear whether such cases were considered by the court before determining that the two individuals were not “spouses”. As a result, it is not clear whether M. v. H. and Stephen v. Stawecki will continue to be the leading authorities on the issue, such that Stajduhar v. Wolfe is an outlier decision, or whether Stajduhar v. Wolfe represents a new line of thinking for the court on whether two individuals must live in the same residence to be considered spouses.
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You are the Estate Trustee of an estate in which the testator left a substantial portion of the residue to certain specifically named charities. The charities who are named as beneficiaries are well established large charitable organizations whom you have corresponded with directly. Such charities have retained counsel to represent them concerning their interests in the estate, and such counsel have in turn requested that you commence an Application to Pass Accounts regarding your administration of the estate.
In preparing the Application to Pass Accounts you turn your mind to who you should serve with the Application. Rule 74.18(3) of the Rules of Civil Procedure provides that an Application to Pass Accounts shall be served on “each person who has a contingent or vested interest in the estate“.
Although you are aware of the general supervisory role that the Office of the Public Guardian and Trustee (the “PGT”) has over charities in the Province of Ontario, as the charities in this instance are well established and represented by counsel, you question whether you need to serve the PGT in addition to the charities with the Application to Pass Accounts. It is, after all, the charities themselves who have a “contingent or vested interest in the estate“, and as the PGT and the charities would be representing the same financial interest you question whether it is necessary.
The requirement to serve the PGT with any Application to Pass Accounts where a charitable bequest is involved is established by section 49(8) of the Estates Act, which provides:
“Where by the terms of a will or other instrument in writing under which such an executor, administrator or trustee acts, real or personal property or any right or interest therein, or proceeds therefrom have heretofore been given, or are hereafter to be vested in any person, executor, administrator or trustee for any religious, educational, charitable or other purpose, or are to be applied by them to or for any such purpose, notice of taking the accounts shall be served upon the Public Guardian and Trustee.” [emphasis added]
The requirement to serve the PGT with any Application to Pass Accounts when a charitable bequest is involved as established by section 49(8) of the Estates Act exists in addition to the general requirement to serve all individuals with a “contingent or vested interest” as established by rule 74.18(3). To this respect, when a Will leaves a bequest to a specifically named charity, the Application to Pass Accounts must be served upon the specifically named charity as well as the PGT. Although from a practical standpoint the PGT’s active participation in an Application to Pass Accounts where a charity is representing itself is unlikely, with the PGT deferring to the charity to protect their own interest, the service requirements remain nonetheless, and both entities could in theory participate in the Application to Pass Accounts, and both could in theory file separate Notices of Objection to Accounts.
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Back in February 2017 I blogged about how, as a result of a recent change in the definition of “spouse” within the confines of Part V of the Succession Law Reform Act (the “SLRA”), divorced spouses could arguably no longer qualify as a “spouse” of the deceased individual for the purposes of dependant’s support. As a divorced spouse would be unlikely to be included amongst any other class of individual who could qualify as a “dependant” of the deceased, the effect of such a change was to potentially deprive divorced spouses from the ability to seek support from their deceased ex-spouse’s estate following death.
The issue centered on the removal of language from the definition of “spouse” within Part V of the SLRA. The definition of spouse previously included language which provided that a “spouse” included two people who “were married to each other by a marriage that was terminated or declared a nullity”. The revised definition provided that “spouse” under Part V of the SLRA had the same meaning as section 29 of the Family Law Act. As section 29 of the Family Law Act did not include similar language to the definition of spouse including two people who “were married to each other by a marriage that was terminated or declared a nullity”, but rather simply provided that “spouse” was defined as including two people who were married to each other or who are not married to each other but cohabitated continuously for a period of not less than three years (i.e. common law spouses), the argument was that divorced spouses could no longer be “spouses” for the purposes of Part V of the SLRA.
Much debate ensued in the profession following such a change in definition about what impact, if any, it would have upon a divorced spouse’s ability to seek support after death. Such debate now appears to be moot, as the Ontario legislature appears to have acknowledged the confusion caused by the change in definition, and has again changed the definition of “spouse” within the confines of Part V of the SLRA with the passage of the Stronger, Healthier Ontario Act (Budget Measures), 2017, S.O. 2017, C.8 (the “Stronger, Healthier Ontario Act”).
In accordance with “Schedule 29” of the Stronger, Healthier Ontario Act, the definition of “spouse” as contained in Part V of the SLRA now reads as follows:
“Spouse” has the same meaning as in section 29 of the Family Law Act and in addition includes either of two persons who were married to each other by a marriage that was terminated by divorce.” [emphasis added]
The revised definition of “spouse” leaves no doubt that divorced spouses can qualify as a dependant of their deceased ex-spouse within the meaning of Part V of the SLRA. Interestingly, while the revised definition of “spouse” clearly includes divorced spouses, it does not contain a reference to those individuals whose marriage was “declared a nullity” as the previous definition of spouse contained. As a result, it is still questionable whether those individuals whose marriage was declared a nullity could be considered a “spouse” within the confines of Part V of the SLRA, and whether they could bring an Application for support as a dependant of their ex-spouse’s estate following death.
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In Tyrell v. Tyrell, 2017 ONSC 4063, the Ontario Superior Court of Justice was faced with a situation in which the testator died domiciled in Nevis, having drafted a Last Will and Testament which was executed in Nevis, which itself dealt with estate assets the vast majority of which were located in Nevis. The Will named the testator’s sister, who normally resided in Ontario, as Estate Trustee. Letters probate were issued to the Estate Trustee from the Nevis court following the testator’s death.
When concerns arose surrounding the Estate Trustee’s conduct following the testator’s death, certain of the beneficiaries brought an Application before the Ontario court seeking, amongst other things, the removal and replacement of the Estate Trustee, as well as an accounting from the Estate Trustee regarding the administration of the estate to date. The beneficiaries who brought such an Application were themselves located across several jurisdictions; being located in Nevis, Ontario, and New York.
In response to being served with the Application, the Estate Trustee took the position that the Ontario court was not the proper jurisdiction to seek such relief as against the Estate Trustee, maintaining that Nevis, being the jurisdiction in which the testator died domiciled, was the proper jurisdiction in which to adjudicate such disputes. The beneficiaries disagreed, arguing that the jurisdiction in which the Estate Trustee was normally resident was the proper jurisdiction in which such disputes should be adjudicated.
In ultimately agreeing with the beneficiaries, and ordering the Estate Trustee to complete certain steps regarding the administration of the estate within 60 days, the Ontario court provides the following commentary regarding Ontario’s jurisdiction over the matter:
“For the purpose of administering the Will, the most significant connecting factor is the residence of the estate trustee. Therefore, the Will is most substantially connected to the province of Ontario and the applicable law on matters relating to the administration of the Will is the law of Ontario. Thus, the Courts of Ontario have jurisdiction over matters relating to the administration of the Will.” [emphasis added]
The court’s rationale in Tyrell v. Tyrell appears to be in contrast to the Alberta Court of Appeal’s previous decision in Re: Foote Estate, 2011 ABCA 1. Although Re: Foote Estate dealt with a determination of domicile for the purpose of deciding which jurisdiction’s laws would apply in the context of a dependant’s support case, the court provided general commentary regarding what jurisdiction’s laws governed the administration of an estate. Indeed, in the opening paragraph of the Court of Appeal’s decision in Re: Foote Estate, the following comment is made:
“This appeal arises from a trial finding that the late Eldon Douglas Foote was domiciled on his death in Norfolk Island. The domicile of the deceased determines the applicable law for estate administration purposes.” [emphasis added]
Re: Foote Estate appears to suggest that it is testator’s domicile that determines which jurisdiction’s laws are to govern the administration of an estate, making no reference to the location of the Estate Trustee. Tyrell v. Tyrell appears to suggest the opposite, with the court concluding that, notwithstanding that the testator died domiciled in Nevis, the laws of Ontario governed the administration of the estate on account of the Estate Trustee being located in Ontario.
The contrasting decisions of Tyrell v. Tyrell and Re: Foote Estate likely leave more questions than answers. Whether the fact that Tyrell v. Tyrell is a decision of the Ontario court, while Re: Foote Estate is from Alberta (although from the Court of Appeal), could also potentially play a role. An interesting hypothetical would be what would happen if a testator died domiciled in Ontario with an Estate Trustee located in Alberta. In accordance with Tyrell v. Tyrell, notwithstanding that the testator died domiciled in Ontario, the laws of Alberta would apply to the administration of the estate on account of the location of the Estate Trustee. In accordance with Re: Foote Estate however, Alberta law dictates that it is the law of the jurisdiction in which the testator died domiciled which governs the administration of the estate, which could have Alberta send the matter back to Ontario. Confusion abounds.
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