Author: Sydney Osmar
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:
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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:
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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:
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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.”
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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.
Thanks for reading and happy learning!
In a recent decision out of the Ontario Superior Court of Justice, a “continued and persistent lack of self-awareness” on the part of both parties resulted in cost consequences to each, one, a testamentary trustee, and one an estate trustee.
Cardinal v Perreault, 2020 ONSC 4825, involved the issue of costs in relation to two applications regarding the Estate of Joseph Edmond Beaulieu. The first application, an application for directions, was commenced by Mr. Cardinal, the testamentary trustee. The second, an application to pass accounts, was commenced by Ms. Perreault, the Estate Trustee.
Actions of both parties caused various difficulties and delays throughout the proceedings.
In rendering its decision, the Court provided a helpful summary of costs principles in estate litigation. That summary is highlighted below:
- Rule 57.01(1) of the Rules of Civil Procedure, which sets out that the Court, in exercising its discretion to award costs, the court may consider a number of factors including, among others: the result in the proceeding; any offer to settle; the principle of indemnity; the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; the complexity of the proceeding; and the conduct of any party to shorten or lengthen unnecessarily the duration of the proceeding;
- In Davies v Clarington (Municipality), 2009 ONCA 722 the Court of Appeal held that reasonableness in the circumstances is the overarching principle applied in awarding costs;
- In Andersen v. St. Jude Medical Inc. (2006) the court outlined the elements to consider in its assessment of the reasonableness of the circumstances as, among others: the specific facts and circumstances of each case; a consideration of the experience, rates charged and hours spent that is appropriate, balanced with the overriding principle of reasonableness; the reasonable expectation of the unsuccessful party regarding what is fair and reasonable; inconsistencies should be avoided with comparable awards in other cases; and the indemnity principle should be balanced with the objective of access to justice; and
- In McDougald Estate v Gooderham, the Ontario Court of Appeal provided direction that the approach to fixing costs in the context of estate litigation should follow the modern approach, so as to carefully scrutinize the litigation and follow the costs rules that apply in civil litigation, unless public policy considerations dictate otherwise;
After reviewing the relevant costs principles, the court considered the parties’ behaviour in their respective applications. In Mr. Cardinal’s application for directions, he sought full indemnity costs of approximately $24,000. The court set what it reasoned to be a fair costs award of $18,000 in favour of Mr. Cardinal, and payable by Ms. Perreault.
In Ms. Perreault’s application to pass accounts, the court set a costs award of $48,000 in favour of Ms. Perreault and payable by Mr. Cardinal. All in all, the set-off of costs awards resulted in a net award to Ms. Perreault in the sum of $30,000. The court further held that the costs were to be payable by Mr. Cardinal, personally, rather than as an expense to the Estate. The Court reasoned that Mr. Cardinal’s attempt to impugn Ms. Perreault’s credibility without a credible evidentiary foundation was reprehensible. The court further reasoned that the estate and the remaining beneficiaries should not be burdened by Mr. Cardinal’s decision to pursue allegations that lacked any evidentiary foundation.
Hopefully this case will stand as a reminder to those who find themselves involved in estate litigation (and litigation generally) – your conduct throughout the proceeding is an important factor that will be considered by the court when setting costs awards.
Thanks for reading!
An exciting announcement (for those in the field of wills and estates) came out of the Superior Court of Justice on October 6, 2020. There has been an amendment to the Province-wide Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media which provides for the electronic filing by email of probate applications, supporting documents, and responding documents with the Superior Court of Justice.
The email address for the court location in which the materials will be filed can be located here.
With regard to filing by email, the amendment provides the following guidance:
- The application form and supporting documents (affidavits, consents, proof of death, etc.) should be submitted by email only;
- Original documents filed in support of the application (i.e. wills, codicils etc.) and certified copies must be filed in hard copy by mail or courier to the SCJ location where the application was filed or provided at the court office;
- Estate administration tax payments and any filing fees must be sent by mail or courier to the SCJ location or provided at the court office;
- Certificates of Appointment of Estate Trustee will be electronically issued and delivered by email to the address provided by the applicant; and
- Applicants must complete a new Information Form (located in the consolidated notice which is linked below) and email it to the court together with the probate application.
Probate applications filed prior to October 6, 2020 can be resubmitted to the court by email, which will allow Applicants to keep their place in the original queue while providing for the ability to receive electronic issuance of the Certificate of Appointment of Estate Trustee.
The amendment does not apply to estate litigation documents, which should continue to be filed through the Civil Submissions Online portal.
For further details on the amendment, including the new Information Form, and the SCJ’s specific requirements regarding the form of emails when filing for probate by email, please see here.
It appears that this amendment will not only provide for the streamlining and ease that comes with access to electronic filing (especially in a COVID-19 world), it may also bring the possibility of having applications from higher volume court locations processed by staff in lower volume court locations to assist those that may be currently experiencing backlog.
Thanks for reading, and happy filing!
I recently blogged on a case arising out of Nova Scotia, addressing the question of whether or not a third party can block an eligible person from accessing MAID (Medical Assistance in Dying).
An elderly couple, previously referred to as X and Y, now identified as Katherine Sorenson and Jack Sorenson, were engaged in a heartbreaking dispute – Mr. Sorenson, who has COPD and has been found eligible to access MAID, wants to die, and his wife, Mrs. Sorenson, does not want to let him.
In July, 2020, Mrs. Sorenson brought an application, arguing that her husband did not meet the eligibility requirements for MAID. Shortly thereafter, she sought an interlocutory injunction to prevent the MAID procedure from going ahead, a request that was rejected by Justice Peter Rosinski. Mrs. Sorenson appealed her decision to the Nova Scotia Court of Appeal.
That appeal was heard at the end of September, and the unanimous decision was rendered October 2, 2020. The Court found that it has no jurisdiction to determine eligibility for medical assistance in dying, including whether an individual has the capacity to make decisions about end-of-life treatment, as those decisions should be left to approved healthcare assessors. In reaching this decision, the Court explained that the legislative history giving rise to the Criminal Code amendments that permit MAID, establishes that Parliament considered, and rejected, a role for judges in the pre-approval or review of MAID eligibility assessments. In doing so, Parliament made clear that the role rests with approved healthcare assessors.
Further, while the Court agreed with Mrs. Sorenson, that there are a variety of contexts where the courts have the ability to assess whether individuals have capacity (with regard to decision making surrounding property and personal care, for example), courts simply do not have the institutional capacity to review challenges to eligibility assessments “in a manner that respects the urgency inherent in a MAID context.” The court saw this matter as a clear example that demonstrates a scenario where an individual, having already been found eligible for MAID (which includes experiencing enduring suffering), would be forced to wait extended periods of time, by virtue of the involvement of the court. This would include waiting on the outcome of production motions, discoveries, and court hearings where health professionals and others are required to testify, among other procedural steps.
The Court ultimately determined that Mrs. Sorenson failed to raise a justiciable issue, and dismissed her appeal. However, after providing this conclusion, the Court provided further comment on Mrs. Sorenson’s standing, determining that she did not have private or public standing to challenge Mr. Sorenson’s MAID eligibility assessment. The Court held that while, as his spouse, Mrs. Sorenson undoubtedly loves Mr. Sorenson deeply, and wants what she feels is best for him, “…those feelings do not give her standing to challenge the determination that he meets the eligibility criteria for MAID…the Supreme Court of Canada in Carter recognized personal autonomy in medical decision-making was to be respected and protected.” Therefore, the Court concluded that permitting Mrs. Sorenson standing to question the outcome of Mr. Sorenson’s MAID assessment, would fail to acknowledge this fundamental right of her husband.
Thanks for reading!
How many pages are too many pages? In what circumstances will the Court of Appeal grant leave to a party to file a factum exceeding 30 pages in length? A recent decision of the Court of Appeal addresses these questions within the context of a request for leave to file a 500 page factum (300 of which comprised of appendices).
In OZ Merchandising Inc. v Canadian Professional Soccer League Inc. et. al., the proceedings had been ongoing for many years, the trial was lengthy, and there were numerous grounds of appeal (60 or so), however, the Court failed to see the justification for a factum outside the prescribed 30 page limit. In coming to its decision, the Court highlighted the well-established principles and relevant considerations, when determining whether or not an extension of the facta page limit should be granted. These points are summarized below:
- The maximum length of appellate facta is 30 pages. This is not a suggestion or a starting point;
- The maximum page length has been set with a view to reasonably complex cases, such that simpler matters can and should be dealt with in much shorter factums;
- The purpose of the 30 page limit is to “focus counsel on the issues and not have a factum that goes on, and in fact, wanders”;
- Leave of the court is required to file a factum beyond the 30 page limit;
- Leave is exceptional, granted sparingly and only in special circumstances;
- While a party must be permitted to present its whole case effectively, this does not detract from the need for conciseness and the duty of efficiency to the court;
- The overarching question, is “whether the extension is required in the interests of procedural fairness and justice to advise the other side of the issues in dispute so it can prepare properly for the appeal and to assist the division of the Court that hears the appeal to deal effectively with the issues”; and
- The fact that an appeal raises important and complicated questions of facts or law, that there are numerous grounds for appeal, or that the proceedings have been ongoing for many years, do not automatically justify an extension of the page limit.
In concluding, the Court cited Chartier J.A (as he then was) in R v Henderson (W.E.), 2012 MBCA 93, stating that “Courts expect counsel to be of assistance to the appellate process…Counsel are expected to have sufficient confidence to prioritize their arguments, to separate wheat from the chaff and to provide fully developed arguments on what should be the real points for appellate review. Not only is this in the best interests of their clients; it is in the best interests of the administration of justice.”
In keeping it concise, thanks for reading!
Previously, I blogged on Medical Assistance in Dying (MAID) and the changes to the Criminal Code proposed by Bill C-7, which sought to provide for assisted deaths where a natural death is not “reasonably foreseeable”. The changes would have included the potential to waive the requirement that late-stage consent be obtained immediately prior to MAID.
The proposed amendments contained in Bill C-7 sought to address the concern that people who qualified for MAID were faced with a difficult decision – ending their life earlier than they wanted so as to ensure they possessed the requisite capacity to consent to MAID, or, risking that should they wait to access MAID, they could lose capacity and therefore eligibility for MAID. This scenario was the reality of Nova Scotian, Audrey Parker, who campaigned heavily to change the late-stage consent requirement, however, ultimately accessed MAID earlier than she wanted so as to ensure that she would not lose eligibility as a result of declining capacity. Bill C-7 is now known as “Audrey’s Amendment”.
Parliamentary review of the Bill was scheduled to occur in June, 2020. However, with the global impact of COVID-19 and the current proroguing of Parliament, the Bill has yet to become law.
While we wait for Parliamentary review of the Bill, a new and novel question has been raised once again out of Nova Scotia – can you prevent someone else from accessing MAID, even when they have been found eligible under the law? This question has been raised in the context of an elderly couple – called X and Y — grappling with these issues – X wants to die, and his wife of 48 years, Y, does not want to let him. Y attempted to seek an injunction, preventing X from accessing MAID, though he had already qualified for MAID. X is concerned that the delay caused by Y’s filings could risk him losing capacity and therefore eligibility to access MAID – a concern that could be addressed if late stage consent could be waived. However, as Bill C-7 has yet to become law, the proposed amended provisions cannot assist X.
As reported by The Star, in seeking the injunction, Y must make a case for “irreparable harm.” From Y’s perspective, should the injunction fail, her irreparable harm is the death of her husband. From X’s perspective, going on living would be worse. A hearing in X and Y’s case was scheduled for August 26, 2020.
Jocelyn Downie, professor and the James Palmer Chair in Public Policy and Law at the Schulich School of Law at Dalhousie University has offered her opinion: “…it’s straightforward in law and what the answer should be, which is: No, a third party doesn’t get to go to court and prevent somebody from having access to something that the Supreme Court of Canada said we have a Charter right to access.”
We will continue to watch and keep our readers updated as this case develops.
Thanks for reading!