03 Mar

Improving Access to Justice

David Freedman Uncategorized 0 Comments

This is my last blog of the week and I’m still banging on about access to justice. This is an issue that I feel strongly about, and my guess is that the same is true for readers of this blog. Today I would like to finish up by dealing with the topic that is contentious – the cost of legal services and the changing landscape for the delivery of those services.

If one reads the books and reports on the changing landscape for legal services, one will quickly conclude that automation will fundamentally change the business models that many firms employ. I doubt, however, that anyone reading this blog has reason to fear technology. Indeed, in this age of scientific innovation one wonders whether technology will ever be up to the task of sitting patiently with a client and discussing her preferences as to who should be appointed her continuing attorney for management of her personal care and property, and, who should inherit her estate. These are intensely personal discussions in which the proclivities of partners and children must be laid bare and decisions must be made as to how to divide an estate which will fluctuate in value as the client ages. Questions of tax efficiency are often thought to be the centrepiece of such discussions, but experience leads one to think otherwise. Clients are often less concerned with saving tax and more keen on obtaining peace of mind; to know that a plan has been put in place and will be carried to completion after their demise. It’s not for nothing that lawyers are categorically in a fiduciary position vis-à-vis their clients.

How then can we increase the ability of legal professionals to serve clients more efficiently and increase access to legal services? Obviously the market operates to price the price that lawyers and paralegals charge their clients for their time, and in my opinion this is not something that regulation could do better. Where I think lawyers can do better generally is in mentoring articling students and junior associates to take on more client work (under supervision) in mundane cases and teach them the skills that machines don’t possess. A number of years ago I started an Elder Law Clinic in the Faculty of Law, Queen’s University. The students drafted Wills and Powers of Attorney and did a range of other working on legal issues bound up with age and ageing. They did very good work and filled a niche not served by private practitioners, legal aid clinics, or lawyers retained through Ontario Legal Aid Plan certificates. As a profession, I believe that we can get much more meaningful work out of our junior colleagues if we are disposed to do so and I think that we should do so. Our colleagues can do a world of good for those people struggling to retain lawyers by making available lower-priced services as part of their ongoing training.

Have a great weekend everyone!

David

 

 

02 Mar

Hull on Estates #508 – Duties Owed By Drafting Solicitors to Disappointed Beneficiaries

76admin Beneficiary Designations, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss the recent decision of the British Columbia Court of Appeal in Johnston v Johnston Estate, 2017 BCCA 59, and the limitations of the duty owed by a drafting solicitor to disappointed beneficiaries.

 Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Nick Esterbauer.

02 Mar

Access to Justice and Litigation Culture

David Freedman Uncategorized 0 Comments

I’m blogging this week about a concern that we all have, increasing access to justice.

About twenty years ago, the process of  a major reform of English procedural law began with a report by Sir Harry Woolf suggesting changes to both litigation culture and procedures. The upshot was the English Civil Procedure Rules which came into force in 1999 and have now seen their 88th update. Two fundamental changes were made: first, the English rules were made subject to an “overriding objective” statement similar to what is now set out in sub-rules 1.04(1), (1.1) of the Ontario Rules. Everything that came before in terms of precedent was made more or less obsolete as a result. Second, there was a change in litigation culture from a party-controlled process to a Court-controlled process. We have gone through much of the same discussion in Canada and are moving in the same direction, albeit along a more difficult road as a result of the federal nature of our legal system and our own evolving attitudes to the adversarial principle. [You can refresh your memory by reading the Canadian Judicial Council’s Access to Justice: Report on Selected Reform Initiatives in Canada and the most important Supreme Court of Canada decision on procedure, Hryniak v. Mauldin, 2014 SCC 7.]

I don’t think that “litigation culture” has changed all that much since the Hryniak v. Mauldin, but cultural change is a tall order and will take time. The question to be considered is how we as legal professionals can further necessary reform by going along (rather than resisting) our attitude to litigation. Consider a case like Sanzone v. Schechter, 2016 ONCA 566 (Ont. C.A.), which deals with a summary judgment motion against an unrepresented litigant in a medical malpractice case. Brown J.A. encouraged the use of pre-trial conferences in such circumstances: “[s]ingle-judge case management, which addresses all the steps in a proceeding, not just the preparation of a single motion, offers a powerful tool by which judges can discharge their duty to accommodate self-represented parties’ unfamiliarity with the litigation process to enable them to present their case to the best of their abilities.”

As always the bottom-line is a financial one. As advocates, we owe it to our clients to pay attention to the global cost of litigation and ensure efficiency. As officers of the Court, we must be mindful of our call on judicial resources. As members of the legal profession, we owe it to ourselves and our clients to call for adequate funding. All of this is very important to how we do our work and how we are perceived by the public. To my mind, it is the lawyers’ creativity and willingness to work cooperatively and collaboratively in their clients’ interests that is most important.

Have a very nice day.

David

01 Mar

Insane Delusions

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

Last week we blogged about the relationship between age and capacity, citing the classic statement of the test for testamentary capacity found in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, which includes:

that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise.

Since Banks v Goodfellow, the courts have considered the meaning of “insane delusion” in relation to testamentary capacity. In Boughton v Knight (1873), [1861-73] All ER Rep 40, the court held that a “delusion” is something more than a mistaken belief. To reach the status of “delusion” the mistaken belief must be something that no person with sense could believe. In Re Watts Estate, 1933 CarswellNB 9, the Court stated:

It has been laid down that a mistaken belief as to a matter of fact or illogical conclusions therefrom is not necessarily an insane delusion, neither is any belief or prejudice however mistaken which has some basis for it […] So long as there is some evidence of or basis for the belief it is not and never can be an insane delusion.

In Banton v Banton, the court held delusions may not be obvious on their face. In this case, the testator’s belief that his children were only interested in his money was contrary to the evidence. Delusions can include “beliefs whose extreme improbability is apparent only when the surrounding facts are known. These are obviously the more difficult cases.”

To find a disposition void because of delusion, the courts have held it is insufficient simply to show that the delusion is related to the subject matter of the disposition. Instead, the court must be satisfied that the delusions affected the dispositions in the will. If insane delusions on the subject matter of the will are proved to have existed, the propounder has the burden of showing the delusions did not affect the testator’s dispositions.

Thank you for reading.

Suzana Popovic-Montag

 

Other articles you might enjoy:

Psychological Autopsies and Testamentary Capacity

Testamentary Capacity and Schizophrenia

Mental Health and Capacity

 

28 Feb

Access to Justice

David Freedman Litigation 0 Comments

Aside from the practice of law, I also teach at a law school. Lately, I have been doing a lot of work in civil procedure law and the concern for what we now term “access to justice”. That is, meaningful and timely access to the law, legal professionals, and the courts. This is nothing new. Reform of civil procedure since the 1830s has been attempting to improve access to justice, although at a pace that sometimes drives observers to distraction. Things are particularly fraught at the moment in respect of criminal proceedings. On the back of R. v. Jordan, [2016] 1 SCR 631 (S.C.C.), the wagons are now circling around preliminary hearings. This week I would like to consider how access to justice can be improved in our corner of the legal universe, and start with what we traditionally term “uncontentious business”, those matters that are (partially) provided for in Rule 74 of the Ontario Rules of Civil Procedure.

The question, then, is how can our procedures respecting probate and the administration of estates be made more efficient so that access to justice is improved? I can’t pretend to know all the answers but it does seem to me that much more pressure must be put on the provincial government to improve the IT infrastructure used by Estates Registrars and the Judges that problematic applications are referred to for review. It simply does not make sense to me that efficiencies cannot be made over the current system, and that some degree of centralization may improve the time to the grant of a Certificate of Appointment. Moreover, given that most courthouses have courts that can accommodate out-of-court witnesses to be heard, there would seem no reason not to improve upon access to Judges using IT in appropriate circumstances. I realize that there may be a need to changes either the Rules or the Estates Act, but this seems small potatoes if the institutional will and resources are in favour of change.

I realize that we toil away in an area of the law where we go relatively unnoticed compared to say criminal or family law proceedings but the public interest in improving access to justice requires that we too consider how we can improve matters. Many of you sit on committees within your local law association, the CBA/OBA, and the like. Take up this question please. (By the way there are great resources respecting access to civil justice online at the Canadian Institute for the Administration of Justice.)

Have a nice day!

David

27 Feb

How does Solicitor/Client Privilege Apply on the Death of a Testator?

Ian Hull Beneficiary Designations, Estate & Trust, Estate Planning, Executors and Trustees, General Interest, Litigation, Trustees, Wills Tags: , , , , , , 0 Comments

What happens to communications between a solicitor and a testator once the testator passes away? Can privilege be waived in order to determine the intentions of a testator?

As stated in R v McClure, 2001 SCC 14, “solicitor/client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.”

It has been established that the beneficiary of privilege (i.e. the client) is able to pass on their privilege to established successors. Pursuant Bullivant v AG for Victoria [1901] (HL), a testator’s death does not destroy the privilege that can be asserted by an executor, and the heirs of the testator.

In Hicks Estate v. Hicks, (1987) 25 E.T.R. 271, the Ontario District Court (as it then was) was faced with the question of whether an Estate Trustee could step into the shoes of the deceased individual and waive privilege in the same fashion as the deceased. In this case, the court clarified that solicitor/client privilege exists for the benefit of the client, not the solicitor.

In Goodman v Geffen, [1991] 2 SCR 353, the Supreme Court of Canada established that there are situations where privilege does not arise where the interests of the party seeking information are the same as those of the individual who retained the solicitor. For example, the court may receive evidence from a solicitor of instructions given to the solicitor by a deceased testator in order to determine the testator’s true intentions. This principle has been further explained in the case of Stewart v Walker (1903) 6 OLR 495 (CA): “the reason on which the rule is founded is the safeguarding of the interest of the client, or those claiming under him when they are in conflict with the claims of third persons not claiming, or assuming to claim under him.” As such, upon the death of a testator, it is possible for the privilege between the testator and their solicitor to extend beyond death.

Aside from trying to determine the true intentions of the testator, the principle of solicitor/client privilege upon the death of a testator can be applied to the disclosure of legal opinions to a trustee, as a trustee is bound to act in the best interests of the beneficiaries and to further their interests. This will be discussed further next week.

Thanks for reading,

Ian M. Hull

Other Articles You May Be Interested In

Can an Estate Trustee Waive Privilege?

Waiver of the Solicitor and Client Privilege

Leaving an Inheritance: An Obligation or Privilege?

 

24 Feb

A Bequest Made in Error

Laura Betts In the News, Litigation, Wills Tags: , , 0 Comments

I recently came across an article which describes how a woman in the United States inadvertently gifted a share of her estate to the wrong beneficiary.

It would appear Esther Patton wanted to thank her local fire department for their dedication and service to her over the years. She instructed her lawyer to include a bequest to the Sebastopol Fire Department in her Will. However, Ms. Patton was mistaken, as it was in fact the Gold Ridge Fire District who had responded to her calls approximately once a month over the course of several years.

While the two fire departments were located in close proximity to one another, they serviced different areas.

When the Sebastopol Fire Department received a cheque for nearly $82,960.00 USD and a letter explaining that the funds were a token of Ms. Patton’s gratitude, it became clear that an error had been made.

Thereafter, uncertainty arose as to who was legally entitled to the bequest, Sebastopol or Gold Ridge.

There was no ambiguity on the face of the Will, in that the Will clearly directed the gift was to go to Sebastopol. However, on the totality of the evidence, it was clear Ms. Patton had intended that gift go to Gold Ridge.

The Ontario Court of Appeal case, Robinson v. Rondel, confirmed that where there is no ambiguity on the face of the will and the testator has reviewed and approved the wording, the court may rectify the will and correct unintended errors in three situations:

(a) where there is an accidental slip or omission because of a typographical or clerical error;

(b) where the testator’s instructions have been misunderstood; or

(c) where the testator’s instructions have not been carried out.

In this case it was not necessary for the parties to seek the assistance of the Court as they amicably agreed that that Sebastopol would keep 1/3 and Gold Ridge would keep the remaining 2/3.

Nevertheless, this article illustrates the issues that can arise when inadvertent mistakes are made in the preparation of a Will.

Other Hull & Hull LLP Blogs & Podcasts that may be of interest to you:

Thank you for reading.

Laura Betts

23 Feb

Hull on Estates #507 – Divorced Spouses and Dependant’s Relief Claims

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , 0 Comments

This week on Hull on Estates, Paul Trudelle and Umair Abdul Qadir discuss recent amendments to the definition of “spouse” under Part V of the Succession Law Reform Act, and the implications for former and divorced spouses. For more on this topic, read our associate Stuart Clark’s recent blog post on the amendments.

 Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Umair Abdul Qadir.

23 Feb

Adoption and Estate Planning in Japan

Laura Betts Estate Planning, General Interest, In the News Tags: , , , , 0 Comments

A recent article published in the Japan Times explains how changes to domestic tax legislation could be causing a rise in the number of adoptions in Japan.

Apparently, the tax changes which were introduced in Japan in 2015 lowered the existing tax exemption threshold from ¥50 million to ¥30 million and reduced the existing deduction of ¥10 million for each heir to ¥6 million per heir.

As a result, the estates of a significantly wider segment of the population are now subject to inheritance taxes, and there appears to be a corresponding rise in the number of individuals seeking to reduce their tax burden through adoption.

According to the article, adoption for the sake of “financial adjustment” has always been a common practice in Japan. In fact, such adoptions, usually of adults who only need to be at least one day younger than the adopting parent, constitute the overwhelming majority of adoptions in Japan. In many cases, adults are adopted when a family does not have someone to take over a family business or a male heir who can carry on the family name. The article states that more recently, however, such adoptions appear to be motivated by the desire to reduce inheritance taxes.

The article refers to a recent case of the Supreme Court of Japan, in which the deceased had adopted his son’s son (his “grandson”), thus giving him four heirs instead of three — his son, his grandson (now second son) and two daughters. As a result, the son’s family stood to receive more of the father’s assets than either of the daughters.  The daughters commenced proceedings seeking that the adoption be declared void as it had merely been intended as a tax-savings measure. However, the Supreme Court of Japan ruled that the intention to reduce the amount of taxes would not automatically annul the adoption itself and upheld the adoption, which many believe in effect, condones this practice.

This is not the first time adoption has been used in estate planning. Before same-sex marriage was legalized, adoption was used on occasion in Canada and the United States as a means of ensuring the transfer of an inheritance between same-sex couples. An article published in the New York Times in 2009, which outlines the use of adoption for such purposes can be accessed here.

Other Hull & Hull LLP Blogs & Podcasts that may be of interest to you:

Thank you for reading.

Laura Betts

22 Feb

Age and Testamentary Capacity

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

“Testamentary capacity” is a term with a particular legal meaning: whether an individual has the necessary cognitive abilities to be capable of making a valid will. The classic statement of the test for testamentary capacity, which remains the most frequently applied version of the test, is found in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects;  shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties;  that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise.

Ontario law presumes adults are capable. The Succession Law Reform Act (the “SLRA”) and the Substitute Decisions Act, 1992 (the “SDA”) codify this common law presumption. As a general rule, in Ontario a testator must be 18 years of age before he or she has the legal capacity to make a valid will. Section 8(1) of the SLRA, however, states:

8. (1) A will made by a person who is under the age of eighteen years is not valid unless at the time of making the will the person,

(a) is or has been married;

(b) is contemplating marriage and the will states that it is made in contemplation of marriage to a named person except that such a will is not valid unless and until the marriage to the named person takes place;

(c) is a member of a component of the Canadian Forces,

(i) that is referred to in the National Defence Act (Canada) as a regular force, or

(ii) while placed on active service under the National Defence Act (Canada); or

(d) is a sailor and at sea or in the course of a voyage.

It is a fundamental principle of elder law that a practitioner cannot assume capacity is an issue merely because of age. According to section 2 of the SDA, everyone aged 16 or older is presumed capable of making decisions about his or her personal care and everyone aged 18 or older is presumed capable of making decisions about his or her property. These presumptions do not expire or change for the elderly. A 100 year old is presumed to be capable, just the same as a 20 year old would be.

The most common cases in which testamentary capacity is an issue are where a testator executes a will late in life, while suffering from progressive dementia. The question in these cases is whether the mental capacity of the testator had deteriorated to an extent that deprived him or her of testamentary capacity.

In some cases, a person can be legally incapable of making a will at any time from birth to death. Congenital conditions, conditions that strike early in life, or catastrophic accidents occurring in childhood can deprive an individual of capacity before he or she attains the age of 18. In these cases, the property of these people will pass on intestacy, as guardians for property in Ontario cannot make a will on behalf of the person whose property they manage. Some jurisdictions, such as England and some Australian states and territories, allow for people who lack testamentary capacity to make valid wills. The only Canadian jurisdiction to allow such wills is New Brunswick, pursuant to the Infirm Persons Act.

Thank you for reading.

Suzana Popovic-Montag

 

Other articles you might enjoy:

Lest We Forget: Assessing Testamentary Capacity

Testamentary Capacity and Suicide

Psychological Autopsies and Testamentary Capacity

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