27 Mar

CRA Filing Deadlines and COVID-19

Paul Emile Trudelle Estate & Trust, In the News Tags: , , , , 0 Comments

Recently, the Government announced changes to Canada Revenue Agency tax filing and payment deadlines in light of the COVID-19 crisis.

Notably, individual returns, normally due on or before April 30, 2020 are now due on or before June 1, 2020. Payments due April 30, 2020 are due on or before September 1, 2020, with no penalty or interest being payable if payments are made on or before September 1, 2020. Installment payments due on a date before September 1, 2020 can be paid up to September 1, 2020.

Things are not so clear with respect to terminal tax returns for deceased taxpayers. Normally, these are due on April 30, 2020 if the deceased died between January 1, 2019 and October 31, 2019, and six months after death if the deceased died between November 1, 2019 and December 31, 2019. What is not entirely clear is whether these deadlines are also extended. Some accountants are advising to file and remit payment in accordance with the old deadlines until further clarification is given. Hopefully, this issue will be clarified shortly.

Please note that things change daily, and further clarification may be coming soon. If these deadlines may apply to you, or an estate that you are responsible for, please consult a knowledgeable accountant and/or monitor the CRA website.

Thank you for reading. Stay safe and healthy.

Paul Trudelle

26 Mar

You’ve Been Appointed Power of Attorney for Personal Care: Now What?

Jenna Bontorin Estate Planning Tags: , , , 0 Comments

In uncertain times, it can be helpful to remember what we can do to plan for our own health, security, and well-being.   In the past, we have blogged about “longevity planning” (i.e. advice for longer life expectancy) and the resemblances it has to executing powers of attorney for personal care (“POA PC”).

In Ontario, powers of attorney for personal care are generally governed by the Substitute Decisions Act, 1992 (the “SDA”). The Health Care Consent Act, 1996 also applies to certain decisions made by attorneys for personal care.

Personal care decisions are about health care, medical treatment, diet, housing, hygiene, and safety.  An attorney for personal care will be able to make almost any decision of this nature that the grantor would normally make for him/herself when they were capable.

According to the SDA, an attorney for personal care must follow the known wishes of the grantor or make decisions in the best interest of that person.  In doing so, the attorney must choose the least restrictive and intrusive course of action that is available and is appropriate in the circumstances.

If you are appointed as an attorney for personal care, below is a non-exhaustive list of steps you should take or obligations you may have:

  • Obtain a copy of the POA PC and determine whether it is in effect. The POA PC only comes into effect once the grantor is incapable of making his or her personal care decisions.
  • Determine whether there are any specific instructions/restrictions in the POA PC.
  • Encourage the grantor’s participation in decision-making and try to foster the grantor’s independence as much as possible.
  • Encourage and facilitate communication between the grantor and his/her family and friends.
  • Consider developing a guardianship plan. While this is not mandatory for an attorney whose powers stem from a POA PC, it may help provide a roadmap for future decisions.

The above checklist is non-exhaustive list of some of the obligations an attorney for personal care have. Section 66(4) of the SDA also sets out a number of factors to consider when determining what personal care decisions are in the incapable person’s best interest.  Most importantly, an attorney for personal care must not lose sight of the fact that he/she is a fiduciary and held to a higher standard.

Making decisions as an attorney can be difficult, particularly in uncertain circumstances.  It is important to be prepared.  The Ministry of the Attorney General also provides some useful information about an attorney’s obligations here.  A lawyer should be consulted so the attorney understands their duties.

Thanks for reading!

Jenna Bontorin

24 Mar

Tools to Help Manage your Estates Practice during COVID-19

Rebecca Rauws Estate Planning, In the News Tags: , , , , , , , , , , , , 0 Comments

We have previously blogged about NoticeConnect’s Canada Will Registry. The Will Registry allows lawyers and law firms to register their clients’ estate planning documents. Other lawyers are then able to search the Registry for the Will of someone who has passed away. The Registry alerts the lawyer who registered the Will of the search, and the lawyer can decide whether to disclose the existence and location of the Will.

On Tuesday, Premier Doug Ford released a list of essential businesses, which included lawyers, meaning that law firms may remain open during the shut-down of non-essential businesses in Ontario. That being said, we are still being encouraged to maintain social distancing, and many of us are working from home to try to help prevent the spread of COVID-19.

Working from home can present a unique set of challenges for solicitors with an estate planning practice, given the volume of original documents that must be stored, organized, updated, and maintained. Records may be kept partially, or entirely by paper records, which are physically located at the office, and inaccessible from home.

The Will Registry can be a helpful tool in organizing estate planning documents electronically, in order to reduce or eliminate issues with accessing records and information when working remotely.

NoticeConnect recently posted this blog setting out how the Will Registry can help professionals work from home. For instance, one of the tools mentioned is the ability to attach electronic copies of documents, such as Wills, to your registered records. This would allow you, and any staff who have access to your digital Will vault, to access and review estate planning documents. This may be helpful in a situation where a client contacts you seeking advice as to whether their Will needs to be updated; you would not be required to go into the office in order to review the client’s Will. There are also organizational tools, which can help with searching, sorting, and updating your records.

In these uncertain and constantly changing times, it is useful to consider any tools that may help us adapt and maintain our practice.

Thanks for reading and stay safe!

Rebecca Rauws

 

These other blog posts may also be of interest to you:

24 Mar

Virtual Commissioning of Affidavits Now Permissible Subject to Appropriate Safeguards

David M Smith In the News Tags: , , , 0 Comments

The Law Society of Ontario (LSO) has issued a COVID-19 Response which is required reading for all members of the Bar.  As we have noted in many of our blogs posted since the onset of the pandemic, the delivery of legal services requires us all to adopt a new normal.  The LSO has provided guidance in its Response regarding the delivery of legal services remotely that would never previously have been considered other than in person.  As the LSO notes: “This is an unprecedented situation and some flexibility may be required to ensure continuity of essential legal services without undue risk to public health.”

Commissioning of affidavits has always been one such task performed in person.  The LSO has provided guidance on an appropriate departure from commissioning in the physical presence of the deponent.  It is worth noting that s. 9 of the Commissioner for Talking Affidavits Act (“the Act”) only speaks of the commissioner having to be in the presence of the deponent (the requirement for “physical” presence being a best practice but not an essential element of the statute).

Accordingly until further notice and as a result of COVID-19:

  • The LSO will interpret the requirement in section 9 of the Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client.
  • Rather, alternative mean of commissioning such as commissioning via video conference will be permitted subject to management of risks associated with this relaxed practice including but not limited to: fraud, identity theft, undue influence, and capacity.

Virtual commissioning is a temporary measure that casts a burden on the lawyer to make extra enquires into the existence of one or more of these risks. The LSO sees the current circumstances as a regrettable opportunity for persons to attempt to commit fraud or other illegal acts.  Lawyers and paralegals must accordingly “be alert to red flags in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.”  To protect against being an unwitting accomplice see the Federation of Law Societies’ Risk Advisories for the Legal Profession.

Thanks for reading.

David Morgan Smith

24 Mar

Remote Will Planning Meetings during COVID-19

Ian Hull Estate Planning, In the News Tags: , , , , 0 Comments

Most of us are used to meeting our clients in person.  With that option on hold for now, we are having to adopt new practices, like “virtual” meetings.  How can we make virtual meetings work for estate planning where communication is so important?

Like many of you, we are turning to technology.

Remote meeting software, like Skype and Zoom, allow us to communicate, see and hear our clients and vice versa.  And yet, there can still be a disconnect in trying to ensure that both parties understand one another.

There is now software that can help with that communication.  Hull e-State Planner, which we created, is cloud based software that can be accessed from home and shared with your client via Zoom or Skype.   It’s a visual platform so you and your client can literally be on the same page – even in different locations.

The client’s family tree and list of assets are displayed on the screen.

You can drag and drop assets, creating legacies and bequests, while the client watches their plan being developed.

While discussing their instructions, you can show the client the different implications of their decisions.

At the meeting, you can give the client a graphic summary of their Will.

Once the meeting is over, you can automatically generate the Will and Powers of Attorney in Word format.

We have found that virtual meeting software, when coupled with Hull e-State Planner, can help make those estate planning meetings much more efficient and effective.

As well, we also understand there has been a financial impact to your practice during this time. In what we hope may help a little, we have decided to waive all Hull e-State Planner fees, for the foreseeable future until things settle down.

We’d be happy to have you join us for a Free Webinar where we will show you how we are using virtual meeting software and Hull e-State Planner together and our thoughts on getting Wills signed up.

The Webinars are:

Wednesday, March  25 at 12:30 PM (ET)

Thursday, March 26 at 8:00 PM (ET)

Click on the date to sign up for the Webinar.

Wishing you and your loved ones good health,

Ian Hull and Jordy Atin

24 Mar

When Time Stops: Ontario Suspends Limitation Periods in light of COVID-19

Jenna Bontorin Estate Litigation, In the News, Litigation Tags: , , , 0 Comments

Many of us are familiar with the expression: “Time waits for no one.” We also previously blogged about the impact time has on all parties in litigation: “No one likes to see a limitation period applied to dismiss a claim.” (So says Justice Nakatsuru in the opening line of his decision in Sinclair v. Harris.)

In general, claims must be commenced in a timely fashion. If too much time passes–depending on the circumstances and nature of the claim–parties may be prohibited from commencing a lawsuit, or have their lawsuit dismissed, by what is known as a ‘limitation period’.

With the recent developments of COVID-19, however, the Lieutenant Governor in Council made an Order under s. 7.1 of Ontario’s Emergency Management and Civil Protection Act suspending limitation periods in Ontario. This suspension is retroactive to March 16, 2020. A copy of the Order can be found here.

What happens when the suspension is lifted? It will be interesting to see if limitation periods go back to existing the day this suspension is lifted, or if further legislation may be needed to deal with this issue.  For now, it appears that “time” is waiting for everyone.

Thanks for reading!

Jenna Bontorin

23 Mar

Court Filings: Do Not Attend Court Houses Except on Urgent Matters

David M Smith In the News Tags: , 0 Comments

The Ministry of the Attorney General (MAG) released a Notice this morning further elaborating on the declaration of a provincial emergency in relation to the 2019 novel coronavirus (COVID-19) and ,more particularly, its impact upon the courts.

The Notice states: “ To further protect the health and safety of all court users and to help contain the spread of COVID-19 , we ask members of the legal profession and members of the public NOT to attend court houses in person at this time, unless they are required to be in court for a hearing or to make an urgent filing in a civil, criminal or family matter.”

Modifications to the filing process are detailed in the Small Claims Court online filing service or the Civil Claims Online Portal for Superior Court of Justice civil matters.

Notwithstanding the foregoing, the court continues to accept non-urgent matters by regular mail.

David M. Smith

23 Mar

Using a Holograph Will to Validate an Unsigned Will? Desperate Times Call for Desperate Measures

Ian Hull Estate Planning, In the News, Wills Tags: , , , , 0 Comments

Over the past few blogs, we discussed alternates for having Clients sign Wills when we can’t meet with them in person.

One of the options was to have client sign holograph Wills.  While that may work with more straightforward instructions, it won’t be practical where testamentary trusts are necessary.

In today’s blog, we will focus on an alternate option – “incorporation by reference” of an unsigned “Will” into a holograph Will.

The terms of one document (“the Incorporated Document”) can be included in another document without repeating all of it provisions.   This is known as “incorporation by reference”.  In order to incorporate the terms of the Incorporated Document into a Will, there are four well established requirements:

  • The Incorporated Document must be referred to in the Will;
  • The reference in the Will to the Incorporated Document must be sufficient to identify the Incorporated Document; and
  • The Incorporated Document must be in existence at the time the Will is signed. It cannot come into existence at a future date.
  • The Incorporated Document must be “entirely separate and apart” from the Will.

The most common examples of incorporation by reference in a Will are a binding memorandum regarding the disposition of Personal Effects and a trust company’s compensation agreement.

Rather than just a list of personal effects or compensation agreement, can the Client incorporate an entire unsigned Will by reference?

Where a testator in a duly executed will or codicil refers to an unattested written paper (whether of a testamentary form or character or not), as a written paper then in existence in such terms that it may be ascertained, the paper so referred to becomes part of his will, in other words, is incorporated therein; provided always that the paper referred to is actually in existence at the time of the execution of the will or codicil. Probate Practice and Re Warren (1930), 38 O.W.N. 358 (Ont. H.C.),

This concept was not disputed in Re Coate Estate, (1987) 26 E.T.R. 161, although the facts in that case did not lead to a finding of incorporation by reference.

Similarly, in Re Dixon-Marsden Estate (1985), 21 E.T.R. 216 (Ont. Surr. Ct.), the Court found that the particular handwriting did not qualify as a holograph document.  Nevertheless, Judge Misener seemed to endorse the use of a holograph document incorporating the terms of a formal, but unexecuted Will.  In that case, a typed Will on a single piece of paper was not properly signed with two witnesses.  However, at the bottom of the page the testator wrote, in his own hand, “The above-mentioned are in short those to whom my estate is left” and below that he signed his name.

“I have always understood that the doctrine of incorporation by reference contemplates the existence of a testamentary document that qualifies for probate, independent of the document sought to be incorporated. If that is so, the condition precedent to the argument that a typewritten document is incorporated is the tendering of a document wholly in the handwriting of the testator and bearing his signature that can be admitted to probate all by itself. Therefore, on the facts of this case, the handwritten words ‘the above-mentioned are in short those to whom my estate is left’ must be capable of admission to probate.”

In that case, the handwritten portion could not be separated from the typed portion and so did not satisfy the requirement that the two documents be “entirely separate”.

In Re Chamberlain Estate, the deceased enclosed two documents in an envelope:

  • A printed Will form, which the deceased signed but was not witnessed.
  • A single sheet of paper wholly in the handwriting of the deceased which listed several of the deceased’s assets. The deceased wrote his name at the bottom of the sheet.

The issue before the court was whether the documents could be read together as a valid Will.

Justice Maher emphasized that although documents referred to in a testator’s Will or codicil may not be duly executed in accordance with The Wills Act, they may nonetheless be incorporated in the Will.

Justice Maher found that the document written wholly in the handwriting of the testator was a valid holograph Will and it met the conditions outlined above. Although the documents were not completed at the same time, the incorporation by reference doctrine still applied as they were testamentary in nature and wholly in the handwriting of the deceased.

The second document being testamentary in character and wholly in the handwriting of the deceased is a valid holograph will and it has been held that the doctrine of incorporation by reference applies to holograph wills: Re Long Estate, [1936] 1 All E.R. 435.

Based on these authorities, it appears that a holograph Will could incorporate the terms of a non-executed formal Will as long as the 4 conditions were properly met.

However, there is an outlier Ontario case that is problematic- Facey v. Smith (1997), 17 E.T.R. (2d) 72 (Ont. Gen. Div.).

In Facey, the court was faced with an unseemly fact scenario.  The deceased was murdered by her husband who later, on the same day, committed suicide.   The issue was whether  certain writings made by the deceased were holograph Wills and if so, did thy properly incorporate the terms of a formal Will by reference.

The court found that a holograph documents did not qualify as a Will because it did “not show a fixed final intention as to disposition on death”.  However, in obiter, the Court said the following:

“I have no difficulty with the doctrine of incorporation by reference applying when the Will into which type written words are to be incorporated is itself a witnessed Will. When those type written words are declared incorporated, the statutory requirement of the testator’s signature duly witnessed is wholly satisfied. In the case of a holograph Will, however, incorporation of typewritten words does not meet the statutory requirement. That requirement is that the holograph Will, to be valid, must be “wholly by his own handwriting and signature” and patently the incorporated typewritten words are not in the testator’s handwriting. The doctrine of incorporation by reference was developed to relieve against the harshness of the Wills Act and to give effect to the intentions of a testator. I am not satisfied that the law in Ontario is or should be that typewritten documents can be incorporated into a holograph Will. The purpose of requiring certain formalities in the making of Wills is to prevent fraud and no fraud is here alleged. Although not formally required, my answer to question two is “no”.

If you decide to recommend this strategy, here are a few suggestions:

  1. Have the formal Will identified as “Schedule A”;
  2. Ensure that the Holograph document qualifies as a valid Will, both in terms of execution and in terms of testamentary intent.
  3. Have the Client initial each page of “Schedule A” and sign it.
  4. Properly incorporate by reference Schedule A in the Holograph Will.

Here is a link to a sample Client Instruction Sheet for your consideration. Use with caution!

Hoping you are safe and healthy,

Ian Hull and Jordy Atin

23 Mar

Changes to Toronto Region Estates List Operations in Light of COVID-19

Jenna Bontorin Estate & Trust, Litigation Tags: , , 0 Comments

Recent developments with COVID-19 mean a number of procedural changes have been put in place at the Toronto Estates List.  The following operations are effective as of March 23, 2020:

1.     All regular matters which have been scheduled and are not urgent, or time sensitive, are adjourned to after June 1, 2020 and are not currently being rescheduled, subject to any further direction from the Court (in accordance with the Notice to the Profession issued by Chief Justice Morawetz, March 15, 2020).

2.     The judges of the Toronto Estates List will continue to hear and decide urgent and time-sensitive matters. The procedure for urgent matters on the Estates List is the same as the procedure for urgent matters on the Commercial List and will be in accordance with the procedure set out in the Changes to Commercial List Operations in light of the COVID-19 March 16, 2020 advisory, with necessary changes.  For greater certainty, all urgent requests and materials on the Estates List should be sent to the Commercial List trial coordinator at Toronto.commerciallist@jus.gov.on.ca

3.    There is no change to the usual procedure for filing materials in matters that are to be considered by the Court in writing, including motions for consent orders and ex parte orders.  Materials for matters to be heard in writing may still be filed at the Estates Office, subject to any further direction of the Court.

4.     Applications for Certificates of Appointment (i.e. probate) are still be accepted and processed by the Estate Office.

5.     Notices of Application (Forms 14E, 74.44, and 75.5) will continue to be issued by the Estates Office but instead of fixing a return date the Notice of Application shall indicate that the matter will be heard: “on a date to be fixed by the Registrar.”

6.      Notices of Objections (Form 75.1) may be filed in the Estates Office as usual.

The PDF copy of the above notice can be found here.

Thanks for reading,

Jenna Bontorin

20 Mar

Emergency Holograph Wills for Clients in Isolation

Ian Hull Estate Planning, In the News Tags: , , , , , 0 Comments

In our blog on March 18th, we gave some ideas for getting formal wills executed when the lawyer couldn’t be present to witness.   In today’s blog, we have a few more options for our clients to consider if getting a Will executed immediately is necessary.

As we all know, holograph Wills are valid in Ontario.  To qualify as a valid holograph Will, the document must be in the handwriting of the Will-maker and signed.  The Succession  Law Reform Act speaks to being “wholly” in the Will-maker’s handwriting.  However, case-law supports the validity of a handwritten portion of a document, even if the entire document is not in the Will-maker’s handwriting. To the extent any part of the document is not in the Will-maker’s handwriting, that part will be excluded from the otherwise valid holograph document.

We have several clients who are in isolation making it impossible to have two witnesses execute our drafted Will.  For a simple but, emergency situation, we are recommending that a holograph Will be done.  We have a few key provisions to be included as a bare minimum:

  1. Identifying the document as a Will;
  2. Revoking prior Will;
  3. Appointing an executor;
  4. Simple dispositive provisions;
  5. Executor’s power to sell; and
  6. Date

The key instructions are:

  1. The entire document must be handwritten by the Will-maker; and
  2. The Will-maker must sign the document at the end.

Proof of handwriting will be necessary if the holograph Will must be probated.  One option that may come in handy is to have the Will-maker video the writing and signing of the document.

We also strongly recommend that the client come in to sign a formal Will as soon as possible.

Click on the link to see a sample Client Holograph Will Instruction sheet for use in these kinds of situations.

In Monday’s blog, we’ll discuss the novel idea that our colleague, Mary Stokes raised.  Can a client use a simple holograph Will to incorporate the terms of a comprehensive formal Will which can’t be properly signed because of a lack of witnesses?

Hope you are all safe and healthy,

Ian Hull and Jordan Atin

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