13 Jan

Court of Appeal Upholds Tolling of a Limitation Period due to Fraudulent Concealment

Natalia R. Angelini Ethical Issues, Executors and Trustees, RRSPs/Insurance Policies Tags: , , 0 Comments

The first instance decision in Roulston v McKenny was recently upheld on appeal.  In this case,  the deceased, Mr. Penner, and his ex-wife, Ms. McKenny, entered into a separation agreement requiring Mr. Penner to maintain $150,000.00 in life insurance, with Ms. McKenny as the designated beneficiary.  Mr. Penner failed to pay the premiums on the life insurance policy, which lapsed prior to his death.

Mr. Penner died in March 2013. Shortly thereafter, the estate trustee (the deceased’s sister, also a beneficiary of the estate) discovered that Mr. Penner’s life insurance policy had lapsed. However, her lawyer did not advise Ms. McKenny’s lawyer until September 2013.

Ms. McKenny commenced her claim against the estate in September 2015, before the two-year expiration after learning of the lapse, but after the expiration of the two-year limitation period from the date of death.  The estate trustee sought the court’s directions as to whether the claim was statute-barred.

The application judge held that Ms. McKenny’s claim was not statute-barred, applying the doctrine of fraudulent concealment to toll the limitation period. On appeal, the appellant submitted that the judge made the following errors:

  1. In finding that a special relationship existed between the estate trustee and Ms. McKenny.
  2. In finding that the conduct of the estate trustee was unconscionable, such as to attract the operation of the doctrine of fraudulent concealment.

The Court of Appeal for Ontario denied the appeal, reasoning that:

  1. The special relationship between the estate trustee and Ms. McKenny did exist, arising from a combination of: (i) duties owed at law by an estate trustee to creditors; and (ii) the estate trustee’s exclusive control over information – the insurer would only release information to her.
  2. By withholding material facts, the estate trustee concealed from Ms. McKenny that she was a legitimate creditor of the estate. It was unconscionable for the estate trustee to initially suggest that insurance was in place, then delay matters and then later take the position (that would benefit the estate trustee as a beneficiary) that the limitation period had expired.

Thanks for reading and have a great weekend!

Natalia Angelini

You may also be interested in the following blog-posts:

 

Fraudulent Concealment and Statutory Limitation Periods

 

Fraudulent Concealment

 

Limitation Periods and the Power of Fraudulent Concealment

 

 

12 Jan

Four Things Your Law Firm Should Consider in 2017

Natalia R. Angelini General Interest, In the News, Uncategorized Tags: , , 0 Comments

Contemplating how to better my practice in this New Year, I was drawn to a piece addressing how lawyers need to think differently on the subject.  Of the various items addressed, four that the author examines hit home to me:

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  1. Leadership capacity and adaptability – The rate of change and competition in our industry is fast, and will probably accelerate. It may be valuable to consider whether your team is sufficiently resilient to bear the pressure of change.  Does it have the foresight to more than just manage, and instead lead your firm through its changes to meet client needs?
  2. Data-driven business development – Examining readership data can aid your firm in identifying connected individuals and pursue them with a specific value proposition. I believe it can also help elevate content by tailoring it to suit the interests of your most highly engaged readers.
  3. Client intimacy – Satisfaction interviews are helpful in learning how to adjust to achieve a happier client, but they are not extensively used. Think about implementing something of this nature.  What your firm can do to keep and grow your most important clients is imperative to have on your radar.
  4. Sustainability – Law firm leaders are facing management challenges, including managing Millennials and the expectation of the “always on” work culture. The author presses home the importance of creating a sense of purpose and belonging for your team, as well as investing in their members so a sustainable work environment is created.

Click here should you wish to read more on these and additional considerations to keep in mind.

Interestingly, another recent article speaks to new legislation that took effect on January 1, 2017 in France, reportedly implemented in response to the 24/7 work culture.  It requires employers of 50 or more staff to negotiate off-hours email practices with their staff.  Although no sanctions are specified for non-compliance, I would hope the intention to promote a climate limiting intrusion of the workplace into private life can be realized.

Thanks for reading and have a great day,

Natalia Angelini

Other blog posts you might enjoy:

Hull and Hull LLP Recognized As Being Among “Best in Digital Marketing”

Marketing an Estates Administration Practice

Practice Management Blogs: A Source for New Ideas

11 Jan

Personality Rights After Death

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

Disney’s decision to “resurrect” Peter Cushing through CGI to reprise his role from 1977’s Star Wars for the franchise’s most recent film, Rogue One, has attracted a lot of attention. Cushing died over 20 years ago. Cushing portrayed a popular character in the original 1977 movie, to which Rogue One is a direct prequel. Rather than recast the role, Disney used CGI technology to create an entirely new performance with Cushing’s likeness. This decision has raised interesting issues, both ethical and legal.

While not confirmed, it seems likely that Disney asked permission of Cushing’s estate to use his likeness in the film. There were two mentions of Cushing in the film’s credits: “With Special Acknowledgment to Peter Cushing, OBE” and “Special Thanks to The Estate of Peter Cushing, OBE.” The laws about the right to prevent others from using and profiting from an individual’s likeness without his or her consent, variously called publicity rights or personality rights, differ significantly across jurisdictions. In California, there are strong protections that last 70 years after death, whereas in England, where Cushing lived, there are no such rights at all.

In Ontario, there is no statute that protects the use of personality, name, or image of an individual, as there is in British Columbia, Manitoba, and Saskatchewan. There is, however, a common law tort of “appropriation of personality.” In Saskatchewan and British Columbia, the cause of action for appropriation of personality is extinguished on death. The exact scope of the cause of action is unclear in Ontario law. In Gould Estate v Stoddart Publishing Co, the Ontario Court of Justice declared obiter that personality rights or rights of personality are devisable under Ontario law. Therefore, the “asset” of a deceased individual’s personality rights pass to heirs as any other assets, pursuant to the Succession Law Reform Act. The decision was affirmed on appeal. The estate of a deceased celebrity in Ontario would therefore be entitled to authorise or restrict use of the likeness of the deceased. The court declined to address how long these rights endure.

Thank you for reading.

Suzana Popovic-Montag

Other articles you might enjoy:

Copyright, Orphan Works, and Wills

Intellectual Property in the Estates Context

Intellectual Property – Why it’s Fashionable to Consider when Estate Planning.

10 Jan

Hull on Estates #501 – Can a foster child inherit from her foster parent’s estate?

Hull & Hull LLP 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, David Smith and Laura Betts discuss a recent decision of the Queen’s Bench of Alberta, Matras Estate, 2016 ABQB 728

 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 David Smith.

Click here for more information on Laura Betts.

10 Jan

Motion for Directions – What Evidence Will Suffice?

Natalia R. Angelini Litigation, Wills Tags: , , , 0 Comments

In W. (W.) v Y. (Y.), the testator’s holograph will gifted the entire estate to his second wife, excluding his daughter and son from his first marriage.   The daughter commenced a will challenge and brought a motion for directions pursuant to Rule 75.06 of the Rules of Civil Procedure.  The respondent second spouse opposed the motion.  She sought to have the will challenge dismissed on the grounds that insufficient evidence had been presented to support an inference that the claim should be heard.

A. Gilmore J. heard the motion, examined the issues and made two key rulings:

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  1. Financial Interest – Rule 75.06 allows any person who “appears to have a financial interest in an estate” to apply for directions as to the procedure for bringing a matter before the court.  Justice Gilmore concluded that it would be inappropriate at this early stage to determine that the applicant has no financial interest.  The threshold is a low one, such that an objector need not prove that she has a financial interest.  In any event, the possibility of an intestacy should the will challenge be successful was sufficient to warrant the court’s involvement.
  1. Suspicious Circumstances – The deceased suffered an aggressive form of brain cancer that his daughter alleged caused cognitive impairments. The evidence adduced raised questions as to (i) the issue of capacity (echoed by Dr. Kenneth Shulman), and (ii) the prospect that certain portions of the will may offend public policy.  Given the wording of the offending provisions, notably described as “disconcerting”, this issue was also linked to that of capacity.  Gilmore J. ruled that it was not for the court to decide at the directions’ stage as to whether there are suspicious circumstances, but rather whether there is some evidence that would support a trial judge’s finding of suspicious circumstances in order to shift the burden to the propounder to prove capacity.   The evidence in this case satisfied this requirement.

This decision reminds us that a motion for directions is often a preliminary procedural step in estate litigation.  The court does not require conclusive evidence but only sufficient evidence to support an inference that the claims raise a genuine issue.  Opposing such a motion in an attempt to terminate the proceeding as a whole will not often be successful.

Thanks for reading and have a great day,

Natalia Angelini

You may also be interested in the following blog posts:

Motions in Estates Litigation: Longer Than You Think

Short Circuiting the Frivolous Will Challenge

Will Challenges: How Much Evidence is Needed to Start

09 Jan

Saskatchewan’s New Adoption Regulations

Ian Hull Estate & Trust, Estate Planning, General Interest, In the News, News & Events, Wills Tags: , , , , , , 0 Comments

On January 1, 2017, the Government of Saskatchewan implemented changes governing the release of adult adoptees birth registration, and access to birth registration information.

Old Regulation

In Saskatchewan, prior to the adoption of the new regulations, adult adoptees required the consent of a birth parent in order to find out their birth name, the name and location of the hospital where they were born, and the name of their biological parents. The requirement of consent was very burdensome on adult adoptees who had to go through the Saskatchewan Government, specifically the Post-Adoption Services branch, in order to track down their biological parents. Locating biological parents and obtaining consent would result in average wait times of approximately three years.

New Regulation

Those eligible to apply for the newly implemented Post-Adoption Services regulations, if the adoption was finalized in Saskatchewan, are:stocksnap_dca2ae8fa9

  • an adult adoptee (18+ years of age);
  • an adoptive parent of an adoptee who is under 18;
  • a birth parent of an adoptee;
  • the adult child of a deceased adult adoptee;
  • the adult child of a deceased birth parent whose child was placed for adoption; or
  • an extended family member of an adult adoptee or birth parent.

With the new regulation, adult adoptees no longer require consent from both parties to access birth registration information. The information is readily available to individuals who file a request. With the current regulation, the wait time for information is expected to be a few weeks.

From January 1, 2016 to January 1, 2017, both adoptees and birth parents had the option to veto the release of their birth registration information, specifically the biological names. There was no option to veto the name of the birth hospital or location. According to an article by CBC News, some 84 vetoes have so far been registered by birth parents, and “significantly fewer” by adult adoptees. Vetoes can only be placed on adoptions that occurred prior to January 1, 2017. Therefore, adoptions after January 1, 2017 must be subject to the new regulations.

The Government of Saskatchewan Post-Adoption Services website offers online forms requiring documentation such as a birth certificate, drivers licence and Order of Adoption. Further documentation will be required if the individual is an adult child of a deceased adult adoptee, or the adult child of a deceased birth parent whose child was placed for adoption. Furthermore, the application allows the searching party to specify their preferred method of contact.

From an estate planning perspective, it is interesting to consider that these revisions will, in certain circumstances, cause adoptees to be named as beneficiaries in the will of their biological parents.

Thanks for reading,

Ian M. Hull

Other Articles You May be Interested In

Adult Adoptions

The Issue of Parental Recognition

Estate Litigation for the Living

06 Jan

More on Rectification

David Freedman Estate & Trust, Litigation, Wills Tags: , 0 Comments

OLYMPUS DIGITAL CAMERAThe power of the Court to rectify any sort of legal instrument is a potent remedy; Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 at paras. 12-15 and 57 (S.C.C.). Ultimately, whether the context is a contract or a Will, the rationale is very much an equitable one – it is unfair to take advantage of an innocent mistake. In the context of rectification of drafting error in Wills, the
re are three requirements:

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

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

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

See Robinson Estate v. Rondel, 2011 ONCA 493 (Ont. C.A.).

A recent example is The Bank of Nova Scotia Trust Company v Haugrud, 2016 ONSC 8150 (Ont. S.C.J.). Here an innocent mistake was manifested on the face of the Will in that there was a mistaken reference to the wrong class of shares in a certain corporation owned by the deceased. The Hon. Justice Mesbur held:

[19]                   Here, the lawyer who drafted the will unequivocally admits his mistakes.  The context for the mistakes is confirmed by the accountant, who sets out the background of how the mistakes occurred.  Essentially, the confusion around the class of shares arose because the accountant was referring to the initial reorganization plan for Davwel, instead of the slightly different plan that was ultimately put in place.  Although the deceased clearly and accurately set out the shareholdings in his letter to the accountant, neither the accountant nor the lawyer used the correct information, and instead maintained their reference to the earlier plan regarding the class of shares.   I conclude it was an accidental slip or omission that resulted in the mistake regarding the class of shares.

[20]                   I also conclude the drafting solicitor misunderstood or failed to carry out the testator’s instructions, in that he failed to refer to either the correct class of Davwel shares or to the correct number of shares that would have to be redeemed in order to carry out the testator’s instructions.

[21]                   All three criteria in Robinson have been met…

Here the power to rectify allowed the situation to be corrected. One might note that this equitable power is especially useful in that it provides the Court with a greater power than merely correcting a false description. In such cases the maxim demonstratio non nocet, cum de corpore constat (‘a false or mistaken description does not vitiate’) operates such that non-essential or surplus words which are inaccurate may be ignored provided that the remaining true descriptive words are sufficiently certain; Re Beauchamp (1975), 8 OR (2d) 2 (H.C.J.). It does not, however, allow for the addition of of the words that were in fact intended by the deceased.

Have a nice weekend!

David

Other articles you might enjoy:

Material Changes to the Equitable Doctrine of Rectification

The Doctrine of Rectification and Proof in Solemn Form

Rectification – When can a will be changed?

05 Jan

Simple mistakes are sometimes the hardest to avoid.

David Freedman Estate & Trust, Estate Planning, General Interest Tags: , , , , 0 Comments

As a professional, one is never pleased to hear of a colleague being found liable in negligence. However, there are always lessons to be learned.

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Ozerdinc Family Trust v. Gowling Lafleur Henderson LLP is unfortunately an example of a case where, apparently, a simple failure to account for the deemed disposition date of trust assets resulted in an avoidable tax liability. While the defendant solicitors admitted acting below the standard of care in failing to inform the plaintiffs respecting the date and consequences of the deemed disposition of the capital assets of the trust, liability was resisted on the theory that the mistake didn’t cause the loss as the plaintiffs/trustees had retained accountants who, the plaintiffs pleaded, should have been tracking and reporting on the deemed disposition date. The point was determined in a motion for summary judgment which was decided in favour of the plaintiffs; the mistake was sufficiently causative on its own.

What can one learn? It seems reasonable that the culprit here is faulty communication given that the firm and lawyers involved were of adequate experience and expertise to meet the applicable standard of care. As LawPro reminds us, mistakes are easy to make and standardized reporting systems help to avoid such errors.

David

Other articles you might enjoy:

Reliance of an Estate Trustee upon counsel: Is reliance always reasonable?

The Interpretation of Releases

Costs Sanctions and other Lessons

04 Jan

The Need to Diversify

David Freedman Estate & Trust, Estate Planning, General Interest, In the News, Passing of Accounts, Uncategorized Tags: , , , 0 Comments

stocksnap_pchsij30cxHappy new year everyone!

I’m sure that we’re all a bit sluggish coming back from the holidays, but hopefully we’ll find the transition not too bad. By the way, did you know that Disney had a $67M life insurance policy on the life of Carrie Fisher?

I was reading through a bunch of recent cases on the weekend to catch up with recent developments, with the usual types of issues being raised (good news: nothing too major happened in the last couple of weeks). I enjoyed reading the Hon. Mr. Justice Bale’s short judgment in Mowry v Groome, 2016 ONSC 7850 (Ont. S.C.J). This was a contested passing of accounts but one in which the beneficiaries succeeded against the trustee for partial compensation for investment losses of about $165,000. Here there was a failure to diversify the estate’s portfolio in favour of retaining and renovating the deceased’s residence. It is a well-reasoned judgment that points out the need for a sensible investment plan – “[t]he whole purpose of diversification is to avoid the losses which can occur in the event of such unanticipated market events” as Justice Bale explained – rather than something more speculative.

Have a nice day!

David

03 Jan

Hull on Estates #500 – Law of Unjust Enrichment

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, News & Events, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , 0 Comments

This week, in the 500th episode of Hull on Estates, Paul Trudelle and Nick Esterbauer discuss the recent Court of Appeal decision of Granger v Granger and the law of unjust enrichment.

 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 Paul Trudelle.

Click here for more information on Nick Esterbauer.

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