Author: Sydney Osmar
In overturning a lower court decision, on May 31, 2019, the Ontario Court of Appeal held that neither contract law nor property law principles govern how to dispose of embryos, where neither party has a biological connection to the genetic material.
Instead, in S.H. v D.H, 2019 ONCA 454 the Court held that the governing legislation and regulations prevail: The Assisted Human Reproduction Act (“AHRA”) and the Assisted Human Reproductions (Section 8 Consent) Regulations (“Consent Regulations”).
In 2011, D.H. and S.H. purchased four embryos (created from anonymous donors) from a lab in the US. Two of the four embryos were viable, one of which resulted in the birth of the couple’s son. The second embryo is stored in an Ontario lab. The couple divorced shortly after the birth of their son, and a dispute arose around the fate of the second embryo.
At the time of purchasing the embryos, the couple entered into two contracts, one with the US based lab, and one with the Ontario based lab. The first contract set out that the frozen embryos would be donated, in the event that the parties are unable to make a decision as to their disposition in the future. The couple also acknowledged that in the event of a divorce, the legal ownership of any remaining stored embryos would be determined in a property settlement.
The Ontario based contract identified D.H. as the “patient” and the S.H. as the “partner”. It set out that in the event of divorce or legal separation, the lab would “respect the patient’s wishes”. When D.H. attempted to proceed with implanting the second embryo, S.H. withdrew his consent.
In the lower court decision, the court looked to the persuasive authority, M. (J.C.) v A. (A.N), 2012 BCSC 584, concluding that the embryos were to be treated as property, governed by the contracts, such that the “patients’ wishes” should be respected.
The Ontario Court of Appeal however, has concluded that Parliament has imposed a consent-based, rather than a contracts-based model through AHRA and the Consent Regulations. Under this legislative format, “donor” is defined to include a couple who are spouses at the time the in vitro embryo is created, even where neither person contributes reproductive material to the embryo. The Court also determined that separation or divorce does not change the donor status of the couple in instances where either both individuals are genetically connected to the embryo, or neither individual is genetically connected to it. Pursuant to s. 10(3) of the Consent Regulations, the donor status is only changed if there is only one genetically contributing former spouse – and it is that individual who will be deemed the sole donor.
The Court went on to consider that the principle of free and informed consent was a fundamental condition to the use of human reproductive technologies. The Consent Regulations reflects that consent is ongoing and is not frozen in time by specifically legislating that the consent of the donor may be withdrawn by either spouse. The Consent Regulations and AHRA criminalizes the use of genetic material without the written consent of the embryo’s donors.
In coming to its conclusion, the Court held that a consent-based model to reproductive technology is “fundamentally at odds with contract law”, and that an individual cannot simply contract out of criminal law, nor the protections that may be afforded to them under that law. Therefore, it was within S.H.’s right to withdraw his consent to the use of the embryo.
In the estate planning context, assisted human reproduction brings with it many considerations which should be taken by the drafting solicitor, such as whether or not the client, or their partner has any stored sperm or ova, whether there is consent to the use of the genetic material post-mortem, if there are any time limitations on its use, and whether or not there is an intention that children conceived with donated sperm/ova posthumously are to be included in the Will, among many others.
To learn more about the impact of assisted human reproduction within the estate planning context, and some practical tips for solicitors, see “Fertility Law Considerations for Estate Lawyers” by Suzana Popovic-Montag.
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It has been almost one year since the music industry and fans around the world lost Aretha Franklin. It was previously believed that Franklin died without a will, leaving an estate valued at approximately $80 million USD to be distributed under Michigan’s intestate succession laws.
However, recent reports indicate that three handwritten notes, which may be wills, have been located. Two are reportedly from 2010 and were found in a locked cabinet, with the third dated March 2014, found under cushions in Franklin’s living room.
The three handwritten notes have been filed, and a hearing will take place on June 12, 2019 to determine their validity.
From a cursory review of the applicable Michigan authorities, it appears that a will is a holograph Will (referred to as “holographic wills” in Michigan), whether or not it is witnessed, if it is (1) dated, and (2) the testator’s signature and the document’s material portions are in the testator’s handwriting. It appears that in Michigan, a holograph will may remain valid, even if some portions of the document are not in the testator’s handwriting, but the testator’s intent can be established by extrinsic evidence.
In contrast, pursuant to Ontario’s Succession Law Reform Act (“SLRA”), to be a valid holograph will the document must be (1) “wholly” in the testator’s own handwriting, (2) signed by the testator and (3) constitute a full and final expression of the testator’s intent regarding the disposition of his or her assets, on death. The SLRA does not require the document to be dated, as is required in Michigan, however both jurisdictions do not require the formal presence, attestation or signature of a witness for a holograph will to be found valid.
In Ontario, and Canada generally, steps are being taken within the legal community in attempts to solve ongoing issues of identifying missing or competing wills. Online will registries are being created so that lawyers and trust companies can upload basic information about the wills they are storing.
The Canada Will Registry’s website indicates that when a user is looking for a will, the site will publish a Knowledge of Will notice, and the lawyer or trust company storing the will (if it has been registered) will be automatically alerted. According to the website, the intent behind the registry is to replace the various search tools currently available with one comprehensive tool.
While such a tool would not have assisted in locating Franklin’s handwritten notes, it represents how the advance of technology can be used to simplify necessary steps regularly taken by estate practitioners, such as the process of locating missing or competing wills.
Technology aside, it will be interesting to see whether or not the Court will find any of Franklin’s handwritten notes to be valid holograph wills.
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Ontario first implemented an organized legal aid plan in 1951, with Legal Aid Ontario (“LAO”) becoming an independent agency in 1998 with the introduction of the Legal Aid Services Act, 1998.
Since this time, LAO’s services have grown to include:
- Duty Counsel – lawyers who can quickly assess a client’s legal problems in court (or in some instances at tribunals) who would otherwise go unassisted or unrepresented;
- Over the Phone Services – Toll free services where clients can access information, referrals, legal aid applications, and advice from a lawyer;
- Certificates – those who are financially eligible can apply for certificates for representation by a private lawyer; and
- Community Clinics – LAO funded clinics assist low-income communities meet their most basic needs and provides a point of access to justice.
LAO’s Annual Report for the 2017-2018 fiscal year indicates that:
- 102,873 certificates were issued to fund private representation for individuals and families across Ontario. This broke into 56,777 certificates for criminal law, 27,049 certificates for family law, 13,687 for immigration and refugee law and 5,360 for civil law matters;
- LAO’s client service centre fielded over 450,000 calls; and
- Duty counsel in criminal court alone provided services to 504,636 clients.
In addition to the above, LAO is the primary funder of 74 community legal aid clinics across Ontario, which provide a wide range of legal services, including: housing and landlord and tenant matters, issues with entitlement to income supports and social benefits, criminal injuries compensation, criminal law, immigration and refugee law, family law as well as employment law.
During law school, I had the opportunity and privilege to work at the Community and Legal Aid Services Program (“CLASP”) located at York University. Like many of my colleagues, who also spent time either working or volunteering with community based clinics, I saw the direct impact CLASP has had on its surrounding community, providing essential legal and social work services to marginalized and low-income Toronto community members.
There is an obvious and growing need for access to affordable legal services for individuals and families across Ontario. Despite this need, the Ontario government has announced cuts to LAO’s funding in the 2019 Provincial Budget:
- A decrease of 30% of LAO’s funding in 2019, amounting to a total cut of $133 million;
- Raising the decrease to 40% by 2021;
- Ending all provincial funding for refugee and immigration law services; and
- Removing mandatory ancillary fees from university tuition.
A number of community legal clinics are associated with Ontario universities. While the bulk of their funding comes from LAO, an important source of funding comes from mandatory ancillary tuition fees. With the government’s announcement that these fees will no longer be mandatory, providing students with the option to “opt-out”, community clinics are facing an additional hit to their funding structures.
International research has shown that investing in community legal clinics reduces overall costs to the legal system and to government programs generally, by decreasing the number of self-represented litigants, helping to keep people housed, and empowering people to live independently and to participate in their communities.
Ontario is comprised of a vast number of diverse and vibrant communities – all of whom deserve to have access to legal services and representation when they need it. As stated by the Honourable R. Roy McMurtry during his tenure as Ontario’s Attorney General: “Legal Aid, and in particular community law, is perhaps the single most important mechanism we have to make the equal rights dream a reality.”
What You Can Do:
If you are as angered by the Ontario government’s proposed cuts as I am, please see just a few examples of actions you can take below:
(1) Emails, Letters and Phone calls
You can write a personalized letter or email to your local MPP. You can also send a personalized letter or email directly to Premier Doug Ford and the Ontario Attorney General, the Honourable Caroline Mulroney. Depending on your level of comfort, you can also call them.
If you do not have time to write a personalized letter, there are many template letters or forms that are being circulated by community clinics. You can also go here for a template form and more information generally.
(3) Town Halls and Rallies
Community members have been active in their organizing. For example, there is an upcoming joint Town Hall on the recent cuts to legal aid (and its impact), hosted by CSALC (the Chinese and Southeast Asian Legal Clinic), CCSP (the Centre for Spanish Speaking Peoples), and SALCO (the South Asian Legal Clinic for Ontario).
The Town Hall will be May 29, 2019 at 6:00pm at the Ryerson Centre for Urban Innovation; 44 Gerrard St. East, 2nd Floor Room 219. For more information you can go here.
While our communities work together to urge the Ontario government to reconsider, and reverse the devastating cuts to legal aid, those who are able to, can donate directly to a community clinic of their choosing. For example, to donate to CLASP you can go here, or, to donate to the Advocacy Centre for the Elderly, you can go here.
Stay tuned for more on this issue which will be discussed by my colleague Nick Esterbauer. Thanks for reading!
The Ontario Superior Court of Justice recently released a decision that provides a helpful and comprehensive overview of the case law regarding solicitor’s negligence claims brought by non-clients.
Within the estate litigation context, this issue sometimes arises where a claim is brought by a disappointed beneficiary as against the drafting solicitor of a testator’s will. The generally accepted origin and definition of a “disappointed beneficiary” is White v Jones,  1 AII E.R. 691, which sets out that those who may bring a claim against a lawyer as a “disappointed beneficiary” are those individuals whom the deceased had intended to include as a beneficiary in their Last Will and Testament, but, as a result of an error or negligence on part of the drafting lawyer, such a bequest was not carried out.
The “disappointed beneficiary” is therefore an exception to the general rule that the only individual a lawyer owes a duty of care to in a retainer is the client. However, the extension of a duty of care to a “disappointed beneficiary” applies solely as it relates to those beneficiaries that a solicitor can reasonably foresee that as a result of their negligence, the beneficiary may be deprived of his or her intended legacy, and where the testator nor the estate would have a remedy against the solicitor.
The Alberta Court of Appeal has held that a drafting solicitor does not owe a duty of care to beneficiaries named under a prior will, as to do so would create inevitable conflicts of interest for the solicitor. Furthermore, the court held that beneficiaries named under prior wills have other options available to them, such as challenging the validity of the will.
General Principles Applying to Solicitor’s Negligence Claims
In the ONSC’s recent decision, 2116656 Ontario Inc. v Grant and LLF Lawyers LLP, 2016 ONSC 114, the particular claim arose in the context of mortgage fraud, however, the general principles that are confirmed by the court are applicable generally to solicitor’s negligence claims. Some of the salient points discussed by the court are summarized below:
- In order for a solicitor to be liable to a non-client, the solicitor must know – from placing him or herself in a position of sufficient proximity with the non-client third party – that the particular non-client is relying on his or her skill. Therefore actual knowledge is a prerequisite for a finding of care, such that it is not sufficient that the solicitor “ought to have known” of the reliance;
- The non-client third party’s reliance must have been reasonable;
- The existence of “red flags” or “warnings” alone will not be sufficient to give rise to a duty of care on the solicitor’s part, unless a duty of care is first established under the ordinary principles;
- The imposition of a duty of care on a solicitor to a third party non-client raises numerous concerns, including:
- it makes a solicitor responsible to someone who has not retained and does not pay him or her;
- It is illogical to impose such a duty on a solicitor where the solicitor’s client themselves do not owe a duty to the third-party;
- It is usually not possible to disclaim or limit liability to such a non-client third party; and
- Making a solicitor assume such a duty to a non-client third party may place the solicitor in a conflict with the interests of the solicitor’s own client;
- The court held that due to the above concerns, it will “only be under “narrow”, “exceptional”, “very limited” and “well defined circumstances” that a lawyer can be held to owe a duty of care to a non-client third party to protect his, her or its economic interests”; and
- The court outlined the various indicia of a solicitor-client relationship, including, inter alia, a contract, retainer agreement or letter of engagement, an open file, the giving and taking of instructions, the creation of legal documents, and the rendering of bills.
This decision provides a comprehensive summary of the existing jurisprudence and reiterates the principle that: but for exceptional and rare circumstances, a solicitor will only owe a duty of care to his or her client. This may be “disappointing” news to non-client, third party claimants.
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Please feel free to check out the below related blog:
My colleague, Natalia Angelini, recently blogged on the unexpected death of QuadrigaCX’s founder, Gerald Cotton. Mr. Cotton was the only person who held the password to access the holdings of the company’s clients.
The QuadrigaCX case has brought the issue of digital assets and passwords within estate planning to the global stage. While this case is an extreme, most testators, if not all, will have some form of online presence requiring the use of passwords when they die.
Natalia discusses the case as a reminder that in the era of growing digital assets, we need to think about how to ensure the gifting of such assets can be effected, as well as ensuring that estate trustees know how to access such assets. I would like to examine the topic of the digital era and passwords in relation to fraud and identity theft involving estates.
Identity Theft of the Dead
Back in September, 2018, I attended the Law Society’s continuing professional development program called “Practice Gems: Probate Essentials 2018”. While there, a paper written by Craig Ross and Kyle Kuczynski of Pallett Valo LLP entitled “Protecting Estates From Identity Theft” was presented.
The paper examines the increase in identity theft of estates and sets out helpful tips on what steps can be taken by testators and estate trustees alike to protect the privacy and identity of the estate.
The paper discusses concerns regarding the vast online presence a testator may have, the full extent of which will likely be unknown to the intended estate trustee. Personally, I think of how this could easily include not only social media accounts such as Facebook, Instagram and LinkedIn, it would also include the many other applications I use in a day, including but not limited to music streaming apps, fitness apps, online banking apps, video streaming apps and transportation apps such as Uber. All of the various social media platforms and applications we utilize store important information including names, dates of birth, phone numbers, emails, credit card numbers, and in some instances the names of family members.
Tips to Protect your Estate
As the paper points out, this information “sits dormant and vulnerable after death”. Below, I summarize some of the main tips the paper discusses in relation to a testator’s online presence, and how best to protect against fraud and/or identity theft:
- The testator should keep and safely store a master list of accounts, subscriptions and services;
- The testator should keep a record of all websites that store or publish personal information. The Testator should also attempt to minimize the personal data that may be published online, such as birth dates, or city of residence;
- The testator should keep a list of login information and passwords for websites and services regularly used by the testator that retain or publish personal information. The list should be maintained in a secure manner;
- The estate trustee should cancel all memberships and known subscriptions of the deceased;
- The estate trustee should advise all financial institutions and credit agencies of death as soon as possible;
- The estate trustee should redirect mail as soon as possible;
- If account logins and passwords are available, social media accounts and other websites should be deleted. If no logins and passwords are available, the estate trustee should contact the website or account providers in question and request that the account be frozen or deleted; and
- Online service providers should also be notified of the death and instructed to freeze accounts.
In addition to providing these helpful tips, the paper discusses the difficulties an estate trustee may have in actually effecting the deleting and freezing of certain social media accounts and/or websites depending on the user agreement between the testator and the platform or website. They provide the example of Facebook which includes a term within its user agreement that prohibits the sharing of passwords and login information without its permission.
Further, Facebook’s default policy is to memorialize a user’s account upon their death, rather than delete it, and while they may delete it upon request, they are under no obligation to do so.
Out of curiosity, I conducted a quick search on Instagram to learn more about their policies regarding the death of user and it also appears that the app will memorialize, rather than delete the account of a deceased user. Instagram also has a policy against the sharing of login and password information.
In light of the ever evolving digital era we find ourselves in, it is prudent to give consideration to what will happen to our expansive online presences after we die, and to take what steps we can now to protect our assets and identities.
Thanks for reading!
Please feel free to check out the below blog which discusses protecting against identity theft after death more generally:
My colleague, Garrett Horrocks, recently blogged on a promising breakthrough in research relating to the early detection of Alzheimer’s disease. The research focused on the use of artificial intelligence to assist in the early detection of the disease.
Last week, I came across an interesting article that discusses a promising breakthrough in the United States in treatment for patients who suffer from Alzheimer’s disease and other degenerative diseases. The fact that treatment options continue to be explored by the science, engineering and medical community is hopeful, in light of last year’s announcement by the world’s largest pharmaceutical company, Pfizer, that it is pulling out of research into Alzheimer’s disease.
The treatment consists of implanting a “pacemaker” into the part of the brain responsible for executive and cognitive functions, such as planning, problem solving and judgment. The article explains that a battery pack is then placed in the chest, which sends electrical currents through the wires in a process called “deep brain stimulation” or DBS.
Studies on the use of the implant have shown that the subject patients’ cognitive and daily functional abilities as a whole declined much more slowly than Alzheimer’s patients in a matched comparison group who were not being treated with DBS.
The article highlights one study participant, Ms. Moore, who, prior to receiving the implant, was unable to cook meals or dress herself without assistance. According to the article, Ms. Moore was very fearful that her disease would take away her ability to play hymns on the piano, however, after two years of receiving DBS, she is still able to continue playing the piano and can now cook meals, select outfits and plan outings independently.
My colleague, Garrett, has pointed out in his recent blog that there could be many ways in which the use of artificial intelligence in the early detection of Alzheimer’s could impact succession and estate planning, such as a predictive diagnosis prompting a testator to take steps to implement an estate plan prior to the loss of capacity.
There is no global definition of capacity, and there are varying degrees of capacity that attract different legal tests. Capacity is decision, time and situation specific, such that a person may have capacity to do certain things, but not others, at different times and under different circumstances.
While the full impact of the use of the implant and DBS in treating Alzheimer’s is not yet clear, should the treatment continue with its successes, it may be possible that people living with Alzheimer’s who do not have testamentary capacity today, may have testamentary capacity sometime in the future.
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