Author: Sydney Osmar

05 Aug

Is a text message a “signature”?

Sydney Osmar General Interest Tags: 0 Comments

Recently, the Divisional Court examined whether a text message is a “signature” for the purposes of section 13 of the Limitations Act (the “Act”).

In 1475182 Ontario Inc. o/a Edges Contracting v Ghotbi, 2021 ONSC 3477 (“Edges”), Edges Contracting was hired by Dr. Ghotbi to conduct leasehold improvements at his new dental practice.

The last payment made by Dr. Ghotbi occurred on March 11, 2016, leaving an outstanding balance of over $24,000. On June 2, 2016, the parties exchanged text messages regarding the outstanding invoice. Dr. Ghotbi, by text message, acknowledged the outstanding balance and indicated that no payment would be made until the work had been completed and a third-party inspector had reviewed the work conducted by Edges Contracting.

No further payments were made by Dr. Ghotbi, and Edges Contracting commenced a claim in Small Claims Court for damages. Dr. Ghotbi defended the action by asserting that Edges’ claim was out of time, calculating the start date of the relevant limitation period as the date of the last payment, being March 11, 2016. Edges, however, argued that the June 2, 2016 text exchange included an acknowledgment of the indebtedness by Dr. Ghotbi, such that the correct start date for the purposes of calculating the limitation period began on June 2, 2016.

In conducting its analysis, the Divisional Court turned to the relevant provisions of the Limitations Act.

Section 4 of the Act provides for a basic two-year limitation period, such that no proceeding shall be commenced after the second anniversary of the day on which the claim was discovered. Section 5 establishes the framework for discoverability. Section 13, provides for, in effect, the extension of the commencement date of a limitation period in relation to a claim for liquidated damages where an acknowledgment of the indebtedness is made. Section 13 further sets out that the acknowledgment must be in writing and signed by the person making it, or the person’s agent.

The trial judge found that the content of the text exchange constituted an acknowledgment of the debt owing. The judge looked to the plain wording of the texts as well as the broader context of the exchanges. While the texts were not signed in the traditional sense, the trial judge found that there was no dispute as to their authenticity.

The Divisional Court agreed with the trial judge’s findings. In finding that there was no question of authenticity regarding the text exchange, the trial judge had relied on the decision of Lev v Serebrennikov, 2016 ONSC 2093, where The Honourable Justice Pattillo, sitting for the Divisional Court, concluded that an email with the debtor’s name had satisfied the requirement of section 13 of the Act, noting that “the issue in every case will be one of fact concerning authenticity”.

The Divisional Court in Edges further held that while the text messages were obviously not “signed” in the traditional sense, section 13(10) does not prescribe any particular form of signature. The Divisional Court agreed that there was no question of authenticity, and, found that the express requirement of a signature had been met, pointing to the fact that there are unique identifiers associated with cell phones, including an International Mobile Equipment Identifier (IMEI) number, which provide in effect a digital signature on every text message sent by the user of the particular device.

The Divisional Court provided additional commentary, noting that the “world is changing…We live in a digital world now, much more than was the case when the Act came into force in 2002. It is incumbent upon the court to consider not just traditional means of affixing one’s signature to a document, but other, more modern means, including digital signatures.”

While we have yet to reach the point where a text message could be found to be a valid last Will and Testament in Ontario, the ever evolving digital world remains a relevant consideration for Estate and Trust practitioners and their clients alike, particularly as it relates to possible extensions to the tolling of limitation periods.

Thanks for reading!

Sydney Osmar

03 Aug

Dependant’s support – notwithstanding any agreement to the contrary

Sydney Osmar Estate & Trust, Litigation, Support After Death Tags: , 0 Comments

Last week, Jonathon Kappy and I podcasted on the recent decision out of the Superior Court of Justice, Virey v Virey, 2021 ONSC 2893.

In this decision, The Honourable Madam Justice Dietrich tackled the question of whether an Estate should have an ongoing obligation to support a dependant, even where the dependant had entered into an agreement, which the Estate Trustee argued, released the Estate from any ongoing support obligations.

In Virey v Virey, at the time of the Application, the Applicant was 94 years old. The Applicant had been married to the deceased for 42 years, together having 9 children. However, the Applicant and the Deceased divorced in 1994. The Deceased died with a Will dated December 9, 2018 – neither the Applicant, nor any of their children, were named as beneficiaries of the Will. Instead, the Deceased’s spouse, the Respondent, was named sole beneficiary and Estate Trustee.

At the time of the divorce, the Applicant was 67. The Minutes of Settlement and the Divorce Judgment (based off of the Minutes of Settlement), set out that the Deceased was to pay three lump sum installments, along with monthly child and spousal support. The Minutes of Settlement set out that the monthly spousal support was final and not subject to variation, and, included a release with respect to support pursuant to the Family Law Act, the Divorce Act, pursuant to the common law, or otherwise.

At the time of death, the Deceased was survived by 7 of his 9 children, the Respondent and the Applicant. He had no debts, owned real property valued at approximately $923,000 and liquid assets of approximately $972,000. The Applicant had no significant savings, with her primary income comprised of OAS and CPP benefits.

While the Respondent argued that the Minutes of Settlement fully released the Estate from any ongoing obligation to support the Applicant, the Court reached a different determination.

As a starting point, the Court turned to section 63(4) of the Succession Law Reform Act (“SLRA”), which sets out that the court has the discretion to make an award for support “despite any agreement to the contrary”. Relying on this sub-section, the Court held that the Minutes of Settlement and the Divorce Judgment, while relevant documents to factor into the analysis, were not determinative and did not oust the Court’s jurisdiction.

As part of its analysis, the Court looked to the decision in Butts v Butts Estate, where the court held that “s. 63(4) gives the court a broad judicial discretion to award support to a dependant, as defined in s. 57, notwithstanding the existence of any prior agreement or waiver. The language of s. 63(4) could not be broader or clearer in its purpose and is obviously aimed at achieving justice and equity at the date of the hearing, notwithstanding what the parties have agreed to earlier on”. Therefore, the Court in Virey concluded that even if the Deceased’s legal obligation ended on his death, the Court is not precluded from ordering support payable by the Estate under the SLRA, as support may ultimately be ordered to achieve equity.

In turning to the analysis regarding quantum required by the SLRA, and the factors provided for at section 62(1), the Court considered Cummings v Cummings, finding that while the SLRA provides a remedy akin to spousal support, unlike spousal support which is determined on the payor’s means and the recipient’s needs, with regard to dependant’s support, the Court must consider not only the Applicant’s needs but also the legal, moral and ethical claims.

In conducting this analysis the Court further considered the fact that at the time of the Minutes of Settlement and the Divorce Judgment (i.e. 1994) societal values regarding quantum and term of support were different than those of today – in 1994, the prevailing view was that on the termination of marriage, the dependant spouse was to be maintained, and nothing more. This is in contrast to the prevailing view today, which is that spouses are entitled to not only proper support, but also a share in each other’s estates when the marriage is over.

In light of the above analysis, the Court ultimately ordered the Estate to pay monthly support to the Applicant for the remainder of her life.

For more on this decision, please see here to listen to last week’s podcast.

For more on dependant support, please see the below blogs:

Dependant Support – Quantum of Support

Dependant’s and Their Entitlement to a Deceased’s Estate

Thanks for reading!

Sydney Osmar

20 May

The Criminal Forfeiture Rule and the Doctrine of Acceleration

Sydney Osmar General Interest, Litigation, Wills Tags: 0 Comments

In The Bank of Nova Scotia Trust Company v Rogers, 2021 ONSC 1747, the Ontario Superior Court of Justice was tasked with interpreting provisions of Mirror Wills within the context of the public policy doctrine that prevents a person found criminally responsible for murder, from benefiting from his or her crime, and, from benefiting from the estate of the person(s) he or she has murdered.

In Rogers, Cameron Scott Rogers plead guilty to and was convicted for murdering both of his parents. Cameron was sentenced to two life sentences without the possibility of parole for 20 years.

The Bank of Nova Scotia, as Estate Trustee for the Estates of both of Cameron’s parents, brought an application seeking the Court’s direction regarding the distribution of the Estate. Namely, should the residue of the Estates remain invested until Cameron dies, in order to ascertain if he has any surviving children, or, should the Estates be administered to the alternative beneficiaries.

Cameron’s parents left Mirror Wills which provided for their residue to be gifted to each other’s survivor, and, if the other has predeceased, then the residue was to be set aside into trust during Cameron’s lifetime. Upon the death of Cameron, the balance of the trust was to be distributed to Cameron’s issue then living, in equal shares per stirpes. If Cameron died without issue, the remainder of the trust was to be divided between Cameron’s three maternal uncles. The Wills left specific instructions regarding the uncles’ interests being used to purchase annuities.

The Children’s Lawyer, representing Cameron’s unborn/unascertained heirs, took the position that the alternate bequests to the uncles could not be accelerated, and rather, the residue should remain invested until it can be ascertained whether or not Cameron will have children. The Children’s Lawyer further took the position that acceleration in the circumstances would equate to varying the trust, which, in the circumstances, the Children’s Lawyer’s consent would be required, and would not be provided.

In arriving at its conclusion, the Court provided a helpful summary of the criminal forfeiture rule or the “slayer rule”. Some of the main points highlighted by the Court are summarized below.

Canadian jurisprudence has identified three different approaches to dealing with situations where the criminal forfeiture rule applies.

(1) The Deemed Death Approach

The Court will deem the murderer to have pre-deceased the testator such that the gift-over provisions in the Will apply. See Dhaliwall v Dhaliwall.

(2) Literal Reading of the Will Approach

The theory behind this approach is that the testator’s Will only provides for a gift-over to the alternative beneficiary in the event that the primary beneficiary actually predeceases the testator, but not in cases where the primary beneficiary is disentitled or barred from taking due to public policy. In such a case, the result is an intestacy. See Re Dreger.

(3) Implied Intention Approach

Under this approach, the court must examine what the testator’s intentions where at the time the Will was executed. In Brissette Estate v Brissette, [1991] OJ No. 1308 (Gen. Div.) the Court found that there was an implied intention that the Deceased’s husband be a legal beneficiary. As the husband was disentitled by public policy, the intention of the Deceased was that if her husband could not receive the residue, it should go to the alternative beneficiaries named under the Will. In this way, an intestacy is avoided.

After reviewing the above, the Court then started its interpretation from the point that courts will seek to avoid an interpretation of a Will that will result in intestacy, though, such an objective should not be maintained at all costs.

The Court then looked to what the intentions of Cameron’s parents were at the time the Mirror Wills were executed, concluding that it was clear that they wanted to keep their assets within their family for as long as possible, before passing to third party charities.

The Court ultimately determined that the implied intention approach was to be preferred, holding that it:

  • keeps the analysis within the wills and allows their contingencies to play out,
  • avoids intestacy where possible,
  • is the least intrusive approach, as it reflects more precisely what has happened, and focuses on the intentions of the testators, and
  • respects the subjective intentions of the testators which were to create contingent levels of beneficiaries and maintain control through the use of the “gifts over” avoiding intestacy.

Acceleration

Acceleration is the concept that a subsequent interest accelerates if a prior interest is disclaimed, surrendered or otherwise terminated. The Court found that acceleration is appropriate in the circumstances. The Court rejected the Children’s Lawyer’s argument citing Waters’ Law of Trusts in Canada, as support for the view that acceleration should not be viewed as being tantamount to variation.

In addition to the above interpretation tools, the Court used the armchair approach to consider what the testators would have wanted, had they been aware of Cameron’s disentitlement and the exact basis for it. The Court further placed weight on the language of the Wills which specifies Cameron’s issue “then living,” concluding that at the time that Cameron became disentitled he did not have children “then living” such that both gifts failed. Finally, the Court reasoned that the result of keeping the residue in trust until Cameron’s death would likely eliminate the possibility of the uncles receiving any share of the Estates (as they would likely pre-decease Cameron), something the Court found to be contrary to the testator’s intention to keep the Estates in the family.

The Court ultimately ordered Cameron disentitled, and applied the doctrine of acceleration such that the uncles would take under the annuity provisions of the Wills.

For more on the Slayer Rule see here and here.

Thanks for reading!

Sydney Osmar

18 May

Rule 74.15 Orders for Assistance – when is the relief sought too broad?

Sydney Osmar Estate & Trust, Litigation Tags: , 0 Comments

In Munro v. Thomas, 2021 ONSC 3320, the Court found that the relief sought by the Applicant under rule 74.15 was outside the scope of the rule, and that the Applicant should have more appropriately sought to compel a passing of accounts under the rule. Further, the relief sought by the Applicant was viewed by the court as not only outside the scope of the rule, but more appropriately pursued as objections in a passing of accounts.

In Munro, the Applicant issued a Notice of Application that sought a broad range of disclosure (though, notably, did not seek to compel a passing of accounts) including:

  • that the Respondent Estate Trustee produce full bank records of the deceased, including those from April 1, 2013 to present;
  • that the Respondent produce the Deceased’s full and complete medical records;
  • the Respondent provide a sworn affidavit explaining as to all gifts he claims the deceased made during her lifetime,
  • the Respondent submit to an examination under oath, and
  • the Respondent submit to cross-examination.

At no point during the Deceased’s lifetime, did she require the use of a Power of Attorney for Care or Property. The Deceased at all times made her own medical and financial decisions. However, the Applicant alleged that the Deceased experienced dementia during her latter phase of life, yet provided no evidence to support this claim. Further, the Applicant did not seek to challenge the Will, nor were any formal claims commenced challenging the validity of the gifts described below.

Many years prior to her death, the Deceased disposed of two pieces of real property (a home and a cottage). The Cottage was transferred to two of her children (one being the Respondent), and, an agreement was entered into such that $33,333.33 would be transferred by the two children to the Applicant on the Deceased’s death, representing approximately 1/3 of the value of the cottage. This transfer was completed on the Deceased’s death. The home was sold to a third-party.

The Applicant was provided with a fulsome accounting of all of the assets that fell into the Estate. The Respondent had attempted to bring a formal passing of accounts but had been advised that a Certificate of Appointment would be required to do so, despite the fact that probate was not required for the administration of the Estate.

The Respondent sought a dismissal of the Application, submitting that the relief sought by the Applicant and the demands made were not consistent with his obligations to account for his dealings with the estate, as the assets in which the Applicant raised inquiry about either passed outside of the estate, or, were distributed by the Deceased prior to her death. The Respondent further submitted that the issues of capacity and undue influence raised by the Applicant all fell outside the scope of the Application under Rule 74.15. Ultimately, the Respondent submitted that the scope of demands pursued by the Applicant would be more appropriately pursued as objections in a passing of accounts, such that the proper course of relief for the Applicant to have pursued would have been to compel a passing of accounts.

The court ultimately agreed with the Respondent. In noting an Estate Trustee’s duty to account, the court turned to Rule 74.17 which sets out the assets required to be accounted for in a proper estate accounting. The court noted that there is no requirement under the Rules for an Estate Trustee to account for assets falling outside of the estate that were passed inter vivos, for tax planning, estate planning, or other purposes.

The Court concluded that the demands made by the Applicant fell outside of the Respondent’s accounting obligations, and the Applicant’s rights as a beneficiary to the Estate. The court furthered that “there are reasonable limits to the extent of an Order that should be made pursuant to Rule 74.15(1). Such an Order is discretionary. It should not be made an instrument of potential abuse of a party arising from the hostility, suspicion or paranoia of another party.

The Court held that the extent of the relief sought by the Applicant was excessive and not warranted by the facts. In dismissing the Application, and ordering a formal court passing, the Court warned that “where a Trustee has given reasonable explanation to the beneficiaries of the assets falling inside and outside of the Estate, has provided legal explanation for their position, and where there is evidence of the Testator’s intentions, beneficiaries who challenge such a Trustee’s accounting without good reason, or who try to force them to pursue assets that lawfully fall outside of the Estate, can be held liable for the Executor’s costs.”

For more on this decision, see Paul Trudelle’s blog here.

For more on how to avoid a passing of accounts, see Natalia Angelini’s blog here.

Thanks for reading!

Sydney Osmar

17 May

The Armchair Rule and Will interpretation

Sydney Osmar Estate & Trust, Wills Tags: , 0 Comments

Recently, the Ontario Court of Appeal had the opportunity to consider the correct use of the “armchair rule” in will interpretations.

In Ross v Canada Trust Company, 2021 ONCA 161, the Court of Appeal was tasked with determining whether the motion judge’s use of the armchair rule to interpret provisions in a Will regarding the disposition of a cottage property was correct.

The motion judge interpreted the Will as directing the proceeds to be equally distributed amongst the Deceased’s four grandchildren. However, one grandchild disagreed with the interpretation, and argued that the proper interpretation would require the sale proceeds to be divided into five equal shares, with distribution of two shares to him, such that he would ultimately receive 40% of the sale proceeds, rather than the 25% that would result from the motion judge’s decision.

The respondents on the appeal cross-appealed. While they agreed with the judgment, they disagreed with the manner in which the decision was arrived at. In short, both parties submitted that the motion judged erred by resorting to the “armchair rule”.

In explaining the armchair rule, the Court of Appeal cites Ian Hull and Suzana Popovic-Montag’s description of the armchair rule in Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2020) at 10.45 and 10.46:

“In the first instance, the court may be convinced that the testator’s intention can be discerned from the will itself. In such a situation, since the testator must be taken to have used the language of the will in view of the surrounding circumstances known to him or her when he or she made his or her will, evidence of such circumstances is necessarily admissible, at least insofar as it corresponds to the facts and circumstances referred to in the will. It seems obvious that a court might conclude that admissible evidence of surrounding circumstances is not helpful in determining meaning…The court puts itself in the position of the testator at the point when he or she made his or her will, and, from that vantage point, reads the will, and construes it, in the light of the surrounding facts and circumstances. This approach is commonly referred to as the “armchair rule”. [emphasis added].

The Court of Appeal rejected the arguments raised by the parties, and concluded that the interpretative methodology applied by the motion judge was sound. The Court found that where the motions judge could not discern the plain meaning of the Will’s language, the motions judge correctly took a step back to “consider the bigger picture” of the surrounding circumstances and applied the armchair rule. The court furthered that given the inconsistency that results from the two Will provisions in question, it was necessary to resort to the armchair rule.

The Court of Appeal ultimately held that the motion judge did not err in applying the armchair rule, the conclusion did not reveal any palpable or overriding error, and, the decision was well supported by the evidence.

Thanks for reading!

Sydney Osmar

04 Mar

When does the authority of an Estate Trustee During Litigation (ETDL) end?

Sydney Osmar Estate & Trust, Litigation Tags: 0 Comments

Pursuant to section 28 of the Estates Act, the court may appoint an ETDL, “pending an action touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any probate or grant of administration.” Rule 75.06(3)(f) of the Rules of Civil Procedure also expressly provides the court with the authority to appoint an ETDL on an application or motion for directions.

However, once appointed, how long does an ETDL’s authority last?

While given that “during litigation” is in the very name of the role, one might think the answer is self-explanatory, however, the Ontario Divisional Court recently had to render a decision on this very question.

In Gefen v Gefen, 2021 ONSC 1464, the Ontario Superior Court of Justice had appointed an ETDL pending the “final disposition of the counterclaim,” (involving an alleged mutual will agreement), and that the ETDL be appointed with respect to all of the property of the Estate “pending the final disposition of the Will Challenge Claim” (a claim commenced in Gefen v Gaertner).

Over the course of November 2018 to March 2019, the trial of issues, including the Will Challenge Claim, proceeded before The Honourable Justice Kimmel. On October 17, 2019 Justice Kimmel’s decision was released, which in part dismissed the Will Challenge Claim.

This decision was appealed, and question was raised regarding the ETDL’s authority – had it ceased, or did the authority continue? The ETDL, by way of his counsel, wrote to the parties confirming his understanding that his role was to continue as ETDL until the litigation was finally completed. Notwithstanding this, one of the parties attempted to list three commercial properties (that comprised a substantial part of the Estate) for sale, without notifying the ETDL.

The parties attended at a case conference on September 3, 2020, where the case management judge ordered, among other things, that the authority and jurisdiction of the ETDL be heard by a judge of the Estates List.

That motion was heard, and it was determined that the jurisprudence provided clear authority for the ETDL to continue until the litigation had finally completed. This decision was appealed to the Divisional Court.

In rendering its decision, the Divisional Court looked to the ordinary meaning of “pending”, meaning “while waiting” or “continuing” concluding that the parties were waiting for the final disposition of the Will Challenge Claim, currently under appeal. The Divisional Court agreed with the motions judge, observing that the principle that, “the duties of an Estate Trustee During Litigation continue until the litigation is finally completed, including during any appeal,” has long been established by the jurisprudence.

The Court also cited Brian A. Schnurr, Estate Litigation 2nd ed, noting that “it is clear that the duties of an administrator pendent lite continue until the litigation in respect of which he is appointed is finally disposed of. Even, as in this case where judgment is appealed his duties continue until the final appeal or disposition of the litigation.”

The Court also unequivocally held that “litigation” on a common sense application of the meaning of the term, includes an appeal to an appellate court, with litigation only ending once all appeals have exhausted.

To learn more about ETDLs, please see the below:

Who controls the assets of an estate during litigation?

Appointing an Estate Trustee During Litigation

The Court Appoints an Estate Trustee During Litigation (ETDL)

Thanks for reading!

Sydney Osmar

02 Mar

Silent Acquiescence and Secret Trusts

Sydney Osmar Estate & Trust Tags: 0 Comments

A recent decision out of the British Columbia Court of Appeal had the opportunity to consider Secret Trusts, which the Court proffered are “rarely encountered today, but have a long history.”

Secret Trusts are trust arrangements made between a testator and a trustee, without disclosure of the terms of the arrangement, but where an understanding exists between the parties. Secret Trusts are not mentioned in a testator’s Will. In addition to the usual trust requirements of certainty of intention, objects and subject matter, to make out a Secret Trust, the following factors must be shown:

  • An intent by the testator to subject the trustee to an obligation in favour of a beneficiary,
  • Communication of that intent to the trustee,
  • Acceptance of the obligation by the trustee, either expressly or implicitly, and
  • The conditions are satisfied before or after execution of the will, but before the testator dies.

Of course, Secret Trusts can be found to exist in both testate and intestate estates.

In Bergler v Odenthal, 2020 BCCA 175, the Deceased, on her deathbed, informed her common-law spouse that, should he become involved in a new relationship, her wish was for her Estate to pass to her niece, who had no career or significant savings. The Deceased wanted her Estate assets to be used to assist her niece in returning to school, should her common-law spouse enter into a new relationship.

The Deceased’s nieces and family members testified to having had similar conversations with the Deceased, or, to having overheard such conversations. While much of the nieces’ evidence was hearsay, the trial judge found that necessity and reliability had been established and that it was therefore admissible to prove the Deceased’s wishes.

Shortly after the Deceased’s death, the common-law spouse transferred himself the Estate assets, depleted them, and, entered into a new relationship.  Upon entering into the new-relationship, he refused to transfer any assets to the niece.

In rendering its decision, the Court looked to Waters’ Law of Trusts in Canada (4th ed, 2012), explaining that the two essential features of a secret trust are a “communication” by the deceased person, to his or her devisee, legatee, or intestate heir, and an acceptance by that person. In expanding on this definition, the Court quoted Professor Waters,

 “The communication is the most essential factor. Once it is established, acceptance, though vital, can be spelled out of the silence of the devisee, legatee, or heir. The court takes the view that any person having received a request of this nature would be bound to say something if he rejected the idea that he himself should not enjoy the property beneficially.”

The silent acceptance of the obligations imposed under a Secret Trust has also been commented on in Oosterhoff on Trusts (9th ed, 2019), where it is observed that “positive acceptance will suffice, but so too will silent acquiescence,” as well as by the editors of Underhill and Hayton: Law Relating to Trusts and Trustees (18th ed., 2010), who state “Acceptance by the recipient [of the communication of the deceased] is readily inferred once communication occurs unless he protests.”

Though the Court provided a  thorough review of silent acquiescence, in Bergler, it was found that the common-law spouse had positively accepted the obligation to hold the Deceased’s assets in trust, for her niece, such that silent acquiescence did not need to be relied upon, in any event. The Court found that the trial judge did not err in making this finding.

The Court also determined that, in finding that a Secret Trust had been settled, upon the acceptance by the common-law spouse, jointly held property between him and the Deceased was severed, such that the common-law spouse was holding the Deceased’s interest in the real-property in Trust, for the niece, in accordance with the obligations imposed upon him pursuant to the terms of the Secret Trust.

To learn more about Secret Trusts, please see the below:

Secret and Half-Secret Trusts

Secret Trusts – How to prove one and what if it fails?

Hull on Estates #601 – Proving Secret Trusts

Thanks for reading!

Sydney Osmar

01 Mar

Modernizing the Succession Law Reform Act

Sydney Osmar Estate Planning, In the News, Wills Tags: 0 Comments

The Accelerating Access to Justice Act, 2021 (“the Act”) or Bill 245, intends to usher forward significant, and welcome, changes to the Succession Law Reform Act (“SLRA”), if passed.

This blog is not intended to be a comprehensive review of the proposed changes, and only seeks to provide an overview of some of the most significant changes.

Making Virtual Witnessing, Execution and Counterpart Execution Permanent

The Act repeats the content of the emergency orders passed by the Ontario government, initially intended to provide for a temporary solution to the difficulties posed by social distancing. In doing so, the new section 4 of the SLRA will provide for the permanent option to have Wills witnessed and executed through the use of audio-visual technology, and, for the execution of Wills in counter-part.

Eliminating Revocation by Marriage

The Act proposes to revoke section 15(a) and section 16, thereby eliminating the automatic revocation of Wills as a consequence of marriage. This particular amendment comes as a result of calls to provide greater protection against predatory marriages.

Treating Separated Spouses more similar to Divorced Spouses

Section 17(2) of the SLRA sets out that, unless a contrary intention appears in the Will, where a marriage is terminated by divorce or declared a nullity, a devise or bequest to a former spouse, an appointment of a former spouse as estate trustee, and the conferring of a general or special power on a former spouse, are revoked, and the Will is construed as if the former spouse had predeceased the testator. This particular provision does not include reference to separated spouses, and the proposed amendments intend to address this gap.

New subsection 17(3) will make it such that section 17(2) will apply to spouses separated at the time of the testator’s death, with necessary modification. The new section 17(4) defines when a spouse is considered to be separated, including that if, before the testator’s death:

  • they lived separate and apart for three years as a result of a breakdown in marriage;
  • they entered into a valid separation agreement under Part IV of the Family Law Act,
  • a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or
  • a family arbitration award was made with respect to their rights and obligations as a result of their marriage breakdown, and
  • at the time of the testator’s death, they were living separate and apart as a result of marriage breakdown.

The Act also proposes new section 43.1 which will eliminate a separated spouse’s entitlements on intestacy. The section relies on the same definition as set out above, to define “separated spouses.”

Moving from Strict Compliance to Substantial Compliance

The Act proposes new subsection 21.1 which provides for the court-ordered validity of a testamentary document. The proposed section sets out that if the Superior Court of Justice is satisfied that a document that was not properly executed or made under the SLRA sets out the testamentary intentions of a deceased, or an intention to revoke, alter or revive a Will of the deceased, the court may, on application, order that the document is a valid and fully effective Will.

The proposed provision does not expand to electronic Wills, which will continue to be considered invalid testamentary instruments.

The Act provides that substantial compliance, as set out in section 21.1 will only apply if the deceased died on or after the date in which the proposed amendments come into force.

To learn more about the Act, and its proposed amendments, please see the below:

Ontario Newsroom – Accelerating Access to Justice Act

Law Times – Proposed estates law changes will create convenience…

Albert Oosterhoff – Welcome Amendments to Ontario’s Succession Law Reform Act

Thanks for reading!

Sydney Osmar

03 Dec

The (Canadian) Social Dilemma: calls for reform to privacy legislation

Sydney Osmar General Interest, In the News Tags: 0 Comments

If you are anything like me, throughout the pandemic, you have turned to Netflix more than once to provide yourself with a welcomed distraction.

Recently, I watched Netflix’s the “Social Dilemma” which focuses on the impact the rising use of social media has had, and likely will continue to have, on society. In particular, the film delves into how social media algorithms powered by artificial intelligence harvest personal data of social media users. Patterns and behaviours are recognized by AI, and the information is used to target users with not only directed ads, but content in general. An underlying theme of the film is the fact that the data-mining used by most social media platforms has thus far been largely unregulated.

In light of the rapid advancements in technology, the average person today is a user of many different social media platforms: Facebook, Instagram, Uber, Uber Eats, LinkedIn, and Tik Tok, just to name a few.

Out of curiosity, I wondered whether any steps have been taken to update Canadian privacy legislation to account for the changes in the ways in which our society now uses (and arguably, is used by) social media.

As it turns out, the Office of the Privacy Commissioner of Canada recently released key recommendations for regulating artificial intelligence. The recommendations arise out of a public consultation that was launched earlier this year.

The OPC’s news release explains that the OPC is calling for legislation that will “help reap the benefits of AI while upholding individuals’ fundamental right to privacy,” and has recommended amending the Personal Information Protection and Electronic Documents Act (PIPEDA) to, among others:

  • allow personal information to be used for new purposes towards responsible AI innovation and societal benefits;
  • authorize these uses within a rights based framework that would entrench privacy as a human right;
  • strengthen accountability by requiring a demonstration of privacy compliance upon request by the regulator;
  • empower the OPC to issue binding orders and proportional financial penalties to incentivize compliance with the law; and
  • require organizations to design AI systems from their conception in a way that protects privacy and human rights.

The OPC also published a separate report that further informs the recommendations for reform. The separate report by Ignacio Cofone, Assistant Professor at McGill University’s Faculty of Law, can be found here.

While the OPC recognizes AI has the possibility to be used for significant societal good, such as detecting and analyzing patterns in medical images to assist doctors in diagnosing illness, improving energy efficiency, and providing students with individualized learning, it also has recognized that uses of AI which are based in individual’s personal information poses “serious consequences for their privacy”. The technological advancements we have witnessed in the past 20 years have resulted in the need to “develop regulations to curb their dangers wile reaping their benefits.”

Thanks for reading!

Sydney Osmar

01 Dec

Fundamentals of Estate Planning: e-State Planner launches the eState Academy

Sydney Osmar Estate & Trust, Estate Planning, Wills Tags: 0 Comments

Jordan Atin and e-State Planner are excited to announce the launch of the eState Academy – a free online estate planning education site for lawyers.

The goal of the Academy is to provide a space for learning and collaboration between lawyers where not only substantive legal issues are discussed, but practice tips. The course will provide its attendees with basic planning frameworks, as well as practical advice regarding client management.

New courses will be added throughout the year so that subscribers can both refresh their understanding of various estate planning topics, but also keep up with recent developments in the law.

The Academy offers a series of short video lessons, presentations and quizzes.

For more information on the Academy please see here. To enrol, please see here. Finally, to learn more about the e-State Planner software, please see here.

Thanks for reading and happy learning!

Sydney Osmar

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