Author: Suzana Popovic-Montag

06 Oct

Holographic Alterations and Extraordinary Gifts

Suzana Popovic-Montag Estate Planning, Litigation, Wills Tags: , , , , , 0 Comments

For those animal lovers amongst us, the recent decision of the Supreme Court of British Columbia in Henderson v Myler may have caught your eye.

Setting out a plan in your estate for beloved pets is not uncommon and a reasonable step to take for your furry friend. At times, in the midst of the enthusiasm to ensure pets are looked after, one can get carried away, and the courts may step in to impose a modicum of reasonableness.

In the present case, the testatrix, Eleena Murray (“Mrs. Murray”), died in late 2017, leaving a will dated January, 2013 (the “2013 Will”), providing a few named relatives small specific bequests, and the residue in its entirety, totalling approximately $1.8 million, to the BC Society for the Prevention of Cruelty to Animals (the “SPCA”).

The dispute arose from an unsigned note from 2017 (the “Note”), found in Mrs. Murray’s safety deposit box. The Note, if valid, indicated that she intended to increase the amount of some of the specific bequests, delete others, and reduce the gift to the SPCA to the specific amount of $100,000.00. However, following Mrs. Murray’s death, her home was sold, and the value of the estate was found to be significantly larger than initially thought. If the estate was distributed under the terms of the Note, there would be $1.4 million passing under a partial intestacy.

In her decision, Madam Justice MacNaughton stated: “Ms. Murray had no immediate family. It is entirely possible that she chose to benefit a charity that reflected her love of animals as opposed to extended family members … The question is what Ms. Murray subjectively intended, not what an average person would choose to do with their estate.”

While the size of the gift to the SPCA in the 2013 Will was unusually generous, the Court emphasized that a divergence from “the average testamentary gift” was not a determinative factor. The Court looked to Mrs. Murray’s personality and lifestyle, and found that, while the gift to the SPCA in the 2013 Will was unusual in a normative sense, it was consistent with her character and actions in life.

Further, considering the inconsistencies in the handwriting of the Note, and the lack of a residuary clause, the Court found that the Note was not effective as a codicil or alteration to the 2013 Will.

In Ontario, handwritten wills and alterations are governed by the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), and more specifically for the latter, section 18. The requirements can seem relatively straightforward – the document must be signed by the testator and be entirely in their handwriting. However, as witnesses are not required, the circumstances around the execution can often be uncertain, opening the door to potential litigation.

If you are planning on writing a holographic will, and have doubts or questions, it may be wise to consult with a lawyer.

Thank you for reading and have a great day!

Suzana Popovic-Montag & Raphael Leitz

22 Sep

Smart Contracts and New Frontiers in Estate Planning

Suzana Popovic-Montag Estate Planning, In the News, Wills Tags: , , , , 0 Comments

Cryptocurrencies, such as Bitcoin and Ethereum, have been surging in popularity. As our colleagues have written here and here, they have raised a variety of unique considerations in the context of estate planning. However, the underlying technology in cryptocurrencies, blockchain, has given rise to a variety of digital tools beyond cryptocurrency. “Smart contracts” are one of these.

Broadly speaking, blockchain allows blocks of information about transactions to be recorded and stored on a distributed ledger. This article provides a more detailed overview of blockchain for those interested. Smart contracts are an extension of blockchain. They are programs stored on blockchain that run when certain pre-determined conditions are met, thus automating the execution of an agreement. Since the steps in a smart contract are hard coded, failure to fulfill conditions as agreed upon, prevents any progression. When conditions are fulfilled, the blockchain is updated and the agreement proceeds.

Two of the main attractions of these smart contracts is that they can serve to accelerate the transaction by removing middle-men and add a high degree of certainty to the performance of an agreement based upon the pre-established terms.

These benefits, however, should be approached with caution. The basis for the certainty arising from smart contracts is that they are hard coded, and the blockchains on which they are built rely on encryption to prevent fraud. The same certainty which is a strength can be a weakness though, as it makes changing the terms of an agreement difficult, if not impossible, in some circumstances.

Businesses advertising smart contracts in the context of estate planning are becoming more common. Potentially removing the need for executors, lawyers and other intermediaries in the administration of an estate can sound very appealing from a cost perspective.

Having said that, one should bear in mind that the law and factual matrix of an estate can and often does vary over time. Certainty can become fatal inflexibility in the face of change. A change in the law or conditions around an estate may prevent the performance of a smart contract where the coded preconditions require an impossible or illegal action.

New technologies are often exciting, and no doubt can bring positive change, but they also bring unknown risks. An abundance of caution would be well advised when using novel tools like smart contracts.

Thank you for reading and have a great day!

Suzana Popovic-Montag & Raphael Leitz

08 Sep

Bob Ross: A Not-So-Happy Mistake

Suzana Popovic-Montag Estate & Trust, General Interest, In the News, Wills Tags: , , , , 0 Comments

An almost ubiquitous figure in pop culture, Bob Ross has been immortalized through references as broad-spanning as t-shirts quoting his famous line, “happy little accidents”, to a cameo in the Marvel action hero movie, Deadpool.

Bob Ross’ long-running series, “The Joy of Painting”, which ran from 1983 until his untimely death in 1994, resulted in the production of thousands of original artworks. The ownership of this substantial art collection was left in the hands of Bob Ross Inc. (“BRI”), as discussed in a previous blog.

Recently, a documentary was released on Netflix, “Bob Ross: Happy Accidents, Betrayal & Greed”, bringing the estate of Bob Ross back into the public eye. It explores behind the scenes Bob Ross’ legacy, delving into the disputes surrounding the use of his name and likeness following his death.

Our previous blog on Bob Ross’ estate explained that, following his death, ownership and control of BRI fell to his business partners, Annette and Walt Kowalski. Bob Ross was known for his easy-going and kind-hearted personality. However, the documentary exposes tensions in the inner business workings of the multi-million dollar empire that was the Bob Ross trademark.

By the end of his life, Bob Ross was allegedly at odds with the Kowalskis and their vision for his brand. Through his will, Bob Ross tried to create a trust in the name of his brother, Jimmie, and son, Steve, that would give them control of his interest in BRI, as well as complete ownership of his name and likeness.

Bob Ross was known for his ‘alla prima’ technique of wet-on-wet paint, which allowed him to be creative in ‘using’ his mistakes to create solutions. Unfortunately for the beneficiaries of the trust, the ink on a contract dries quickly, and the partnership agreement with the Kowalskis was one ‘mistake’ Bob Ross could not fix.

The litigation that followed his death resulted in a settlement granting the Kowalskis complete control of BRI pursuant to the terms of its partnership agreement. Steve, the son, attempted to renew the litigation in 2019 on grounds of an undisclosed term of the trust agreement, granting him exclusive rights to the name and likeness of Bob Ross. The US federal court ruled in favour of BRI, as the plaintiff could not own property that the trust never actually had a legal right to.

The outcome was no doubt disheartening for Steve. However, the law upheld what was ostensibly a valid and enforceable contract, the partnership agreement.

Business vehicles such as partnerships and corporations are commonplace. However, the articles of incorporation of a corporation, for example, can restrict the sale and/or transfer of shares. In entering any kind of business structure, it is always wise to plan ahead. Where so desired, make sure your beneficiaries can benefit from your interest in a business, and remember your estate may not have the power to change or undo contracts you were a party to.

Thank you for reading and have a great day!

Suzana Popovic-Montag & Raphael Leitz

25 Aug

One Final Trip Around the Globe

Suzana Popovic-Montag General Interest Tags: , , , 0 Comments

When someone dies and their wish is to be buried or cremated in another country, grieving family members are left with the daunting task of figuring out how to transport the remains of their loved ones. This can be even more stressful when the death is unexpected.

While most major airlines facilitate the transportation of human bodies or ashes by air cargo, it is not as simple as it sounds. The whole process can be complicated and expensive, so seeking assistance from a professional repatriation company is advisable.

Professional repatriation companies have the expertise to ensure that the entire experience is smooth and easy, as they lead you through the process. They can help obtain and translate death certificates, liaise with government departments and embassies, and coordinate with airlines. These companies usually have pre-existing relationships with airlines as “known shippers” and therefore can make the necessary arrangements to securely transport the deceased with dignity. They can also deal with all compliance issues that may arise, and preparing the paperwork required by both the country of departure and the country of arrival.

The costs of transporting the body of a deceased varies depending on the airline carrier, travel distance, and weight among other factors. While domestic transportation can start at $3000, international transportation of a body can range from $10,000 to $20,000 on average. Transporting cremated ashes has lower compliance requirements and can be a less expensive option to consider.

Most major airlines also offer discounted fares for family members travelling as a result of a bereavement. While each airline has its own eligibility, Air Canada has a broad definition of immediate family which includes:

  • spouse
  • child and grandchild
  • parent and grandparent
  • sibling
  • legal guardian or spouse of legal guardian

The categories include step, half, in-law, and common-law relatives that would fall under each of these classifications. Same-sex partners and in-laws of such are also included.

For more information, it would be best to contact airlines directly or get in touch with a professional repatriation company so they can further guide you in this process.

Thanks for reading, and have a great day,

Suzana Popovic-Montag & Ekroop Sekhon

11 Aug

Gathering Evidence for a Will Challenge

Suzana Popovic-Montag Estate & Trust, Litigation, Wills Tags: , , , , 0 Comments

Earlier this year, the Court of Queen’s Bench of Alberta directed that a party challenging a will may be able to obtain orders for disclosure before the Court determines whether the will must be proven in solemn form.

This case may be of interest in Ontario because the procedure for commencing a will challenge in Alberta and Ontario is relatively similar. If a party in either province wishes to challenge a will, that party must establish an evidentiary basis for doing so before a hearing will be ordered. In Ontario, the requirement to provide a “minimal evidentiary threshold” before a will must be proven in solemn form was reiterated by the Court of Appeal in Neuberger v. York, 2016 ONCA 191 (CanLII). The standard is worded differently in Alberta, where applicants must provide an evidentiary foundation to confirm that there is a “genuine issue to be tried” before the hearing of a will challenge will be ordered: see Quaintance v Quaintance (Estate), 2006 ABCA 47 (CanLII) and Logan Estate (Re), 2021 ABCA 6 (CanLII).

Evidence a party challenging a will in Alberta may obtain before a hearing is ordered:

In Gow Estate (Re), 2021 ABQB 305 (CanLII), the will dispute was between four of the deceased’s children. Two siblings were serving as the personal representatives of the estate, and two other siblings applied to challenge the deceased’s will on several bases, including undue influence. The personal representatives opposed the applicants’ request that the will be proven in solemn form.

The applicants also applied to the court for interim relief – an order that would permit them to question the personal representatives and obtain documentary disclosure, including the estate solicitors’ files, the deceased’s medical records and driver’s licence documents, previous wills, and other estate planning records, before the “threshold” application was heard. The personal representatives objected to the interim relief sought by the applicants on the basis that Alberta’s Surrogate Rules did not permit pre-application discovery and also argued that the testator’s privacy was to be respected unless the applicants proved that formal proof of the will was warranted in the circumstances.

Before the interim application was heard, the personal representatives also provided the applicant siblings with partial disclosure relating to the testator’s health, testamentary capacity and intentions, and estate planning, and also examined one of the applicant siblings in anticipation of the threshold application.

The interim application was heard by Justice Feth, who permitted both questioning and limited documentary disclosure, recognizing “the importance of early disclosure in surrogate disputes”. With respect to questioning, the Court confirmed that the personal representatives could be questioned “about their personal interactions with the testator during his lifetime, including their observations of his mental capacity and their involvement in his testamentary decision-making.” Justice Feth explained:

[47]           Access to pre-application questioning advances procedural fairness since the Applicants are obligated to meet an evidentiary burden and obtain corroboration through material evidence from other sources. In meeting their onus, measured litigation procedures should not be foreclosed to them.

[51]           Immunizing an adverse party from questioning is especially concerning when undue influence is raised. The living witness who is likely the most knowledgeable about the interactions with the testator would be hidden from the Court.

Justice Feth also observed that it would not be fair to permit the threshold application to be heard by the Court with only partial disclosure selected entirely by the personal representatives because of the potential for “a misleading presentation of the facts”.

Limited documentary disclosure of some of the deceased’s medical records and previous wills was also ordered in light of the partial disclosure already provided by the personal representatives. While Justice Feth acknowledged that individuals may have a significant privacy interest in their medical records, it was also recognized that such a privacy interest is not absolute and ordered the personal representatives to provide the applicant siblings with disclosure for the period during which the deceased’s testamentary capacity was in question.

Justice Feth acknowledged the potential for “[c]oncerns about fishing expeditions, the testator’s privacy interests, and excessive delay and expense occasioned by exuberant demands for disclosure” during the early stages of estate litigation, but held that those concerns could be managed by the Court rather than prohibiting early disclosure in surrogate proceedings.

Evidence a party challenging a will in Ontario may obtain before a hearing is ordered:

In comparison to Justice Feth’s decision, Ontario courts have in some recent instances been reluctant to provide documentary disclosure in will challenges during the preliminary stages of the litigation. In Seepa v Seepa, 2017 ONSC 5368 (CanLII), Justice Myers held that documentary disclosure should not occur until after a threshold will application has been granted. Recently, in McCormick v McCormick, 2021 ONSC 5177 (CanLII), Justice Wilcox described Justice Myers’ decision as follows:

[24]         In Seepa, Meyers J. expanded on the policy considerations behind the minimum evidentiary threshold requirement. It was to protect from lengthy, intrusive, expensive documentary collection and investigation proceedings untailored to the needs of the individual case and from intrusion into a deceased’s privileged legal files and personal medical records. In the face of these, a litigant was not to be given tools such as documentary discovery that are otherwise ordinarily available to a civil litigant before the litigant has produced some evidentiary basis to proceed.

In keeping with the Court’s decision in Seepa, in Young v Prychitko, 2021 ONSC 3150 (CanLII), Justice George declined to order documentary disclosure in the context of a will challenge, holding that the Court would not entertain a fishing expedition and compel production of documents before the minimal evidentiary threshold had been met. The firm’s blog post about the Court’s decision in Young v Prychitko can be accessed here.

While document disclosure prior to a threshold application may have recently been discouraged, some Ontario decisions have instead permitted cross-examination on affidavit evidence as a next step, as noted in Justice Wilcox’s decision in McCormick. The Court even noted in Young v Prychitko that the parties would be able to cross-examine each other on their affidavit evidence before the threshold issue, in that case, was decided.

Having said that, the practice of permitting parties to cross-examine each other on affidavit evidence before documentary disclosure may not always be optimal. In Shapiro v Shapiro, 2021 ONSC 4501 (CanLII), for example, Justice Hurley noted that cross-examination on an affidavit before documentary discovery in that particular case was “unlikely to accomplish anything of real benefit” and likely “would only add to the legal costs and beget delay” – the very danger that Justice Myers indicated the minimum evidentiary threshold requirement was intended to avoid. The will threshold application was determined in Shapiro without any cross-examination.

In light of these recent decisions by Ontario and Alberta Courts in which we have seen two conflicting approaches in the disclosure of medical records and other documentary disclosure, the minimal evidentiary threshold issue should remain top of mind to lawyers assisting clients with the early steps of a will challenge.

Thanks for reading!

Suzana Popovic-Montag

 

For further reading on threshold will challenges and the evidentiary burden, check out these other blog posts:

Request for Production or a Fishing Expedition?

Corroboration in Will Challenges: Overcoming the “Epic Hurdle”

Lessons from Neuberger Part 1: Does an interested person have an automatic right to proof in solemn form?

Another Will Challenge Threshold Case

Getting Over the Will Challenge Threshold: Applying Seepa v. Seepa

The Threshold for Will Challenges: Joma v Jaunkalns

28 Jul

Estates, Art and Valuations

Suzana Popovic-Montag Estate Planning Tags: , , , 0 Comments

This week, we thought it would be interesting to touch on the intersection of law and art in estate planning.

Artwork collections, whether they are comprised of a multitude of works or just one piece, are often a treasured possession of their owners, carrying deep emotional significance and/or high monetary value.

In estate planning, the sentimental and financial aspects of an art collection can become intertwined. Testators and beneficiaries may have competing views. As a simple example, there could be disagreement on whether the art should be sold or kept within the family. That being said, the valuation of artwork is an issue that may often fly under the radar.

The value of an artwork collection can have serious repercussions on the administration of an estate, especially where the estate lacks liquidity to address expenses, such as estate administration taxes.

However, the valuation of art may not always be a clear cut issue, as discussed by Mr. Ronald D. Spencer, Esq. in this article. Value can vary drastically over time, and even where the value remains stable, there may be significant challenges in finding buyers, especially where the collection is large or mostly one artist, potentially burdening the estate with tax liabilities and no certain financial benefit in exchange.

Understanding and articulating one’s wishes concerning their art collection is the first step in minimizing the impact of some of these issues. You will want to set out your intentions and wishes clearly in your will.

Avoiding uncertainty can be achieved through several means. The collection can be distributed through testamentary or inter vivos gifts where appropriate beneficiaries exist. It can be sold, which may carry advantages where the valuation and marketability of the collection is uncertain over time and a potential buyer has been found. Donation to a charitable organization is also an option, with many registered charities dedicated to art.

Whatever path one chooses, it is important to understand the implications from a tax and transactional perspective to ensure the most efficient execution of the testator’s intentions.

For those interested in further reading on art and law, our colleagues at Hull & Hull LLP have written some excellent blogs on the topic here and here.

Thank you for reading and have a great day!

Suzana Popovic-Montag & Raphael Leitz

14 Jul

If You Have Valid Concerns, Don’t Sign a Beneficiary Release

Suzana Popovic-Montag Executors and Trustees, Passing of Accounts Tags: , 0 Comments

If a loved one has died and you are named in the Last Will and Testament as a beneficiary, the estate trustee will probably ask you to sign a release before any assets are distributed. This legal document confirms that you approve how the estate has been administered to date.

As a residual beneficiary, you are entitled to receive a detailed report of all income, expenses, and distributions from the estate, plus be given the chance to review and approve any compensation requested by the estate trustee. These reports should be as complete and informative as possible, so that when you sign the release you feel you are doing so in an informed fashion.

Along with the request for the release to be signed, there should be a statement that makes it clear that you have the option not to sign the release. At this stage, it is a good idea to seek independent legal advice. You may be unsure of the estate accounting, or the level of compensation claimed by the estate trustee, or there could be other issues related to how the estate was handled.

As the court stated in Rooney Estate v. Stewart Estate, “It is not an answer to say that the beneficiary approved of the accounts and gave a release. One of the obligations of the solicitor acting for the trustee is to ensure that all beneficiaries have competent, independent advice in reviewing the accounts. There is no suggestion by the solicitor that he advised the [beneficiaries] to obtain independent legal advice when reviewing the trustee’s accounts which he had prepared.”

It can be expected that the estate trustee will have received a Tax Clearance Certificate from the Canada Revenue Agency, confirming that all monies owing by the deceased and the estate have been paid. If the estate is distributed before this Certificate is received, the estate trustee could be held liable for any unpaid tax debts.

While it is easy to understand why beneficiary releases are commonly sought by estate trustees, Ontario courts have held that it is improper for trustees to withhold payment or delivery of an inheritance if a beneficiary has refused to sign. At this point, a passing of accounts may be the next step.

From the estate trustee’s perspective, a passing the accounts is the easiest way to deal with uncooperative or unreasonable beneficiaries. Approval of your accounts by the court also removes the need to obtain the consent of the beneficiaries.

If the estate trustee has not sought to pass his or her accounts, the beneficiaries may seek a court order that compels that to happen. During this court approval process, beneficiaries can raise any concerns they have with how the estate was handled. The estate trustee will also be able to explain to the court what they did for the estate, why certain expenses were incurred/payments made, and provide justification for any claim for compensation.

As part of this process, the beneficiaries can request and review the estate trustee’s documentation, such as bank statements and invoices received. Having said that, you should have a good reason for contesting the handling of the estate, as an unnecessary or ill-founded challenge may end up costing you greatly. For example, if you are challenging the honesty and integrity of the estate trustee but in the end the court finds they acted ethically and competently, you may have to pay not only your own legal expenses, but also the legal expenses incurred by the estate trustee in defending your allegations.

If you have any questions or concerns about a beneficiary release, it is wise to seek legal counsel before making the decision to sign it.

Thanks for reading – and have a great day!

Suzana Popovic-Montag

30 Jun

Why Most Canadians Don’t Have a Will

Suzana Popovic-Montag Estate Planning, Wills Tags: , 0 Comments

Most things in life are not guaranteed, but one thing most definitely is – death. Although that may be an unpleasant thought for many, we cannot escape from this inevitable truth and should become more comfortable talking about and planning for it.

While a large part of the Canadian population had previously ignored the need for estate planning, the COVID-19 pandemic encouraged people to change their thinking and realize the importance of doing so. In fact, many Canadians took matters into their own hands.

According to a poll conducted by the Angus Reid Institute in 2018, 51% of Canadians did not have a will in place before the pandemic. There were several reasons to explain this lack of estate planning, with the majority being summarized below:

  • 25% think they don’t need to worry about it because they’re “too young”
  • 23% feel it isn’t worth their time because they don’t have enough assets
  • 18% think it’s too expensive to get a will made
  • 8% don’t want to think about dying
  • 5% think it’s too time consuming

There have been general studies conducted to find out why people hesitate to make a will. It has been determined that many people are simply avoiding making tough decisions. But why spend time working hard to accumulate assets during your lifetime only to risk having them be distributed without any consideration of your wishes?

There is no harm in starting your estate planning “early” and then periodically reviewing and updating your will and estate plan after a framework has been established. Revisiting plans every five years, as frequently recommended, would greatly reduce the difficulty and time that would be spent once you are older with a larger and more complicated estate.

As well, the expense that can later be incurred as a result of estate litigation is likely to be higher than the cost of making a will now. Alternatively, if you don’t have a large estate, you can make a simple will yourself, although one should be weary of the complications that arise from not seeking professional advice.

The Coronavirus was the wake-up call many Canadians needed to start thinking about their own estate plans. While it is a relief that the pandemic may soon be behind us, the threat of death never truly goes away. Estate planning is a life-long conversation that should be normalized so that one can ultimately “rest in peace” whenever the time may come.

Suzana Popovic-Montag and Ekroop Sekhon

16 Jun

The Simplicity of Online Will Kits is Their Biggest Shortcoming

Suzana Popovic-Montag Estate Planning, Wills Tags: , , 0 Comments

The appeal of an online will kit is undeniable. Advertisements promise that, for less than $100, anyone can draw up a will in just 20 minutes without ever having to set foot in a lawyer’s office.

While this convenience and low cost will appeal to some, there are significant drawbacks that must be considered when comparing a do-it-yourself document to a traditional Last Will and Testament that a lawyer would prepare.

For example, one of the key selling points of a kit is that it is simple, with few forms to fill out. That should set off alarm bells. Most of us have complicated personal and financial lives. When we die, we will leave behind complex estates that include investments, property, securities and perhaps multiple beneficiaries. A proper estate plan can hardly be captured in the fill-in-the-blank format of an online will kit.

Although these kits claim to cover all the legal issues that govern estate planning, how will you know that they do? If there is a mistake or omission, your beneficiaries will pay the price for the shortcut you took when drawing up your will.

Convenience and a low up-front cost are no substitutes for the advice a wills and estates lawyer can provide. As mandated by the Law Society of Ontario, we constantly take courses to ensure we are aware of new developments in the law. Standardized online kits may not reflect changes brought about by the courts and provincial government.

For example, Bill 245, the Accelerating Access to Justice Act, significantly alters Ontario’s estate laws. As I discussed in a previous post, it makes five major changes to the Succession Law Reform Act. It can be assumed that an online will kit will not address those legislative updates.

The role of the lawyer is to make sure your Last Will and Testament reflects your intentions for your estate after you die. Estate lawyers are versed in the laws of the province, so we can ensure your Last Will and Testament complies with all provincial legislation as it divides up your asset as you desire.

A will drawn up by a legal professional should help avoid uncertainty and court challenges after your death, reducing the fees your estate will have to pay. The more complex your estate, the more important it is to make sure your will reflects that complexity, while clearly laying out your final wishes. An online form that can be completed in 20 minutes pales by comparison.

Another problem with online will kits is that they may be met with court challenges. With a traditional will, clients discuss the details of their estate with a lawyer who can identify problems that may arise in the future, as well as suggest ways to avoid them. Do-it-yourself kits may not effectively address scenarios such as blended families or if you have children with different spouses. These issues require appropriate language when drafting a will – phrasing that an estate lawyer can provide.

Legal counsel can ensure your will is free of vague wording and conflicting or ambiguous provisions. The wording in an online kit may sound professional, but it may not meet the high standard a legal practitioner would bring to the document’s preparation.

Don’t take a chance with the inheritance you want to leave loved ones. You may never know if saving a few hundred dollars on preparing your will was worth it, but your loved ones may if problems arise.

Contact me if you need assistance with drawing up this important document – and have a great day!

Suzana Popovic-Montag

02 Jun

Request for Production or a Fishing Expedition?

Suzana Popovic-Montag Litigation, Wills Tags: , 0 Comments

When a deceased’s capacity is called into question, medical and legal records are generally a key source of evidence. Having said that, courts will not allow parties to go on a “fishing expedition” with respect to production orders. This issue was recently considered in the case of Young v. Prychitko, 2021 ONSC 3150.

In this decision, the deceased executed his last Will on September 2, 2020 (the “2020 Will“), which provided for the majority of his estate, totalling approximately $500,000, to be distributed to his son, the applicant in the proceeding. The deceased’s daughter, the respondent, filed a Notice of Objection to the 2020 Will, alleging that the deceased lacked capacity and was subject to undue influence at the time of execution. Accordingly, the respondent sought an order for the production of the deceased’s testamentary documents, including his medical, financial and legal records. The applicant argued that the respondent failed to meet the evidentiary threshold to require the production of the aforementioned documents and, as a result, his position was that the order would be premature. Having said that, the applicant’s proposed timetable afforded the respondent with the opportunity to file further evidence in support of her objection at a later time.

In its decision, the court held that, prior to compelling the production of certain documents, it must be satisfied that the evidentiary threshold has been met. This minimal evidentiary threshold, as discussed in Neuberger Estate v. York, 2016 ONCA 191, protects against needless expense and litigation. This is particularly important in the case of small estates, as the costs involved in seeking productions may be disproportionate to the size of the estate. In its analysis, the court considered the following questions:

1) When can someone with an interest in an estate compel the propounder of the Will to prove it in solemn form?

2) How does someone satisfy the above test?

3) If the test is not yet met, what procedure should be followed moving forward?

The court stressed that simply alleging incapacity or undue influence is not enough. Even if there is some evidence to support this point, the court must assess whether the propounder can sufficiently answer the evidence.

In the end, the court held that the respondent’s evidentiary record was insufficient. As such, compelling the production of medical, legal, and financial records at this early stage was determined to be premature and would ultimately be “countenancing a fishing expedition.” The course proposed by the applicant was held to be the most prudent.

Thanks for reading! Have a wonderful day,

Suzana Popovic-Montag & Tori Joseph

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