A wave of changes in how wills can be signed is sweeping over the legal profession with the force of a tsunami in the last month. While there is still momentum for change, why not include other areas of estate law like an online mechanism to search for unclaimed estate assets. Now is the time to do it.
In the United Kingdom the government posts a weekly list of estates with unclaimed property in those cases where the responsible local authorities were unable to find the legal heirs of estates. It is known as the “Bono Vacantia “ list, and it also provides instructions on making claims where someone has died and not left a will, or where family could not be located.
This publicly available list works well and is similar to the Bank of Canada’s online list of bank accounts with unclaimed balances that can be found here.
In Ontario, there is no publicly available system in place for unclaimed property, or for provincially regulated financial institutions like credit unions, or for estates with unknown heirs. There have been attempts in the past, but, legislation was never put into force. Other provinces, like British Columbia, do have systems in place. In Ontario, if the Office of Public Guardian and Trustee does not locate the beneficiaries of an estate then the money will remain unclaimed. There is no way for a beneficiary to search online for inheritance assets that they might be legally entitled to receive.
The current wave of changes in estate law forced by the pandemic also creates opportunities for further changes – why not do it now?
For more information on unclaimed assets please see:
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We have previously written about the Estate Arbitration and Litigation Management (“EALM”) initiative, which has been spearheaded in an effort to keep estate litigation matters moving forward during the COVID-19 pandemic. Our previous blogs on the EALM initiative can be found here and here.
In its Notice to the Profession dated May 5, 2020, the Ontario Superior Court of Justice announced that it will not resume in-person hearings until July 6, 2020, at the earliest. The notice further states that the scope of matters being heard by courts virtually will be expanded in the near future, but the particulars regarding such an expansion have not yet been released.
While access to the courts remains limited, EALM is available as a means of obtaining assistance in the determination of procedural and/or interim (and certain substantive) matters that are not necessarily urgent in nature and not currently eligible for a virtual court hearing. The matters set out in an EALM agreement can be arbitrated by senior estates practitioners in a timely and cost-efficient manner. EALM arbitrations can take place via teleconference or video conference, depending on the preferences of the parties and the arbitrator.
As previously indicated, EALM is not intended to in any way circumvent the role of the Office of the Public Guardian and Trustee (the “PGT”) or the Office of the Children’s Lawyer (the “OCL”) where the estate matter involves unprotected charitable interests or the rights of persons under legal disability. Since our last blog post regarding EALM was posted, the initiative has received the support of the PGT and the OCL and our precedent EALM agreement has been further updated to recognize the potential role that the PGT and/or the OCL may have in EALM process. Best EALM practices include ensuring that the PGT and/or the OCL are provided with the opportunity to participate, and further include the following:
- Where any substantive issue to be submitted to arbitration affects the rights of persons under legal disability, or an unprotected charitable interest, the parties must provide notice of their intention to enter into an EALM agreement to the PGT and/or the OCL;
- The PGT and/or the OCL should be served at the early stages of a matter, particularly when the issues will have a significant effect upon the interests that they represent;
- Where the PGT and/or the OCL are participating in a proceeding, their consent to proceed to EALM is required;
- Where it is necessary for a court to appoint the PGT or the OCL as litigation guardian, each office may consider requests to engage in the EALM process after they have been appointed as litigation guardian (rather than prior to their formal appointment); and
- An arbitrator’s decision to resolve substantive issues involving the rights of persons under legal disability will be considered to be a final settlement, which requires court approval under Rule 7.08 of the Rules of Civil Procedure.
A revised copy of our precedent EALM agreement, which has been updated in consultation with the PGT and the OCL in consideration of the comments set out above, can be found here. An updated list of senior estates practitioners who are prepared to assist as EALM arbitrators is available here. I again thank all of those who have demonstrated an interest in assisting other members of the Estates Bar as arbitrators.
EALM is a cost-effective measure to move matters forward and provides the parties to litigation with more control than the traditional court process. Once the courts resume full operations, we can only anticipate that they will be at full capacity and hearing dates will be in high demand. In light of this, we are hopeful that EALM will continue to assist parties to estate litigation and their counsel as a suitable and efficient alternative to in-court hearings.
If you are interested in introducing EALM into your own practice, or if you are interested in being added to our roster of EALM arbitrators, please contact me at email@example.com.
Thank you for reading and stay safe.
A recent decision out of Alberta on holograph wills is interesting. The Alberta Court of Queen’s Bench decision released on February 20, 2020 in Edmonton in the Estate of Dalla Lana, 2020 ABQB 135 starts with the following :
“Mr. Dalla Lana made a will in 1997. On March 1, 2018 (four days before he died) and via notes made on two sticky notes, he made what he described as “changes to my earlier will”. The “changes” if valid, effectively rewrote the entire will.”
The decision then goes on to find that the “two sticky notes” were a valid will. This was one more decision in a long line of cases (in substantial compliance jurisdictions, unlike Ontario) with wills being upheld when written on everything from napkins to tractor fenders.
If a valid will can be done on a sticky note, one should ask is there any reason now why an electronic will could not be done on an iPad or smartphone?
Pandemic emergency Orders in Ontario have recently accepted wills being signed and witnessed by video conference or by counterpart. However, there is still a requirement for a “hard copy” of the will. A purely electronic will with a digital signature is still not permissible.
Some jurisdictions have already allowed electronic wills into probate. In Australia, the High Court of Queensland gave probate to a will in 2013 contained in the iPad of the deceased, in Yu Estate 2013 QSC 322.
Although digital electronic signatures have been allowed in Ontario for use in some business situations for many years, there are some restrictions on doing electronic will signatures which are found in the Electronic Commerce Act, 2000, SO 2000, c 17,
31 (1) This Act does not apply to the following documents:
- Wills and codicils.
- Trusts created by wills or codicils.
- Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care.
Given the emergency statutory provisions triggered by the pandemic, it seems inevitable that a meaningful debate will soon ensue about the merits of electronic wills and the broader question of whether Ontario should adopt substantial compliance in its estates legislation.
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Please enjoy these blogs on the subject:
Video conferencing has been around for about forty years. It has been used in criminal court bail hearings and on applications to the Supreme Court of Canada for more than thirty years in some parts of the country. There are many good reasons to now expand the use of video and other technology in the law of wills and estates. The technology “Genie” is now out of the legislative bottle it has been kept in for too long, and it is not likely to be put back in when this pandemic fully ends.
The changes made in the last month to how a will can be validly signed in Ontario have been made far more quickly than anyone expected. The substance of these changes has been dealt with in other Hull and Hull blogs. The Emergency Management and Civil Protection legislation in Ontario, and the Orders made pursuant to that legislation beginning on Tuesday March 17, 2020 have effectively amended past practice to such a degree that the usual caution of the legal profession has been surrendered. Wills can now be signed and witnessed over the internet. Counterpart signed wills are now allowed. Affidavits can be commissioned by video conference now. These and other changes have been made and implemented quickly, with effect to the core of basic principles. The legal profession in Ontario has not seen changes like this in the past one hundred years!
The changes are brought on by the circumstances of the current pandemic emergency and are necessary. It has been impressive to watch these changes being made so quickly. Immense credit is due to those involved. Led by the Attorney General of Ontario, Doug Downey, and with the Deputy Minister, lawyers at the Ministry, members of the Estate Bar, and others, they have all truly done monumental work. On Monday May 4, 2020 a notice was posted on the Ontario Court of Justice website that included the following statement that the Court would be, “…working closely with its justice partners, including the Ministry of the Attorney General, to adopt technology that will increase participants’ ability to access the Court’s services using remote means, such as by the electronic filing of court material, remote scheduling processes, and remote hearings.”
It is interesting to ask however, while changes were happening incrementally in other areas of the law over many years, why was there no progress in the area of execution of wills? It is important to also ask what further changes should be made at this time. For many lawyers the recent storm of events and the subsequent changes are anxiety making. Nevertheless, this is the time further permanent changes should be considered. What should be of interest now is how technology can be used to benefit all going forward. Before the timing of the window for change closes this should become an important discussion among estate lawyers.
Thank you for reading.
These blog posts on the subject may also be of interest:
Many of us are in the midst of spring cleaning, or, this year, the deeper, extended COVID cleaning.
As part of cleaning process, consider cleaning up your estate plan. Organize the documents and information relevant to your estate plan for your own reference, and for the ultimate ease and convenience of your estate trustees.
There are many websites that offer tips on organizing and simplifying your estate documents. There are apps available to help organize and store your information.
As a starting point, BDO has produced a comprehensive list, “My Financial Story and Estate Organizer”, that can be completed by the testator and left in a readily accessible place: perhaps with the testator’s Estate Trustees.
I have seen too many estates where a person passes away leaving a state of chaos. Often, it is not known whether the person left a Will, or who the estate trustee is. This presents immediate problems when trying to address the steps necessary upon death, such as making or implementing burial decisions. In addition, after burial, the estate trustee is often scrambling to find out what assets the deceased had, and where they are.
This game of cat and mouse can be readily avoided by listing what and where your assets are. Not making such a list is simply vexatious.
Remember Gerald Cotten? He was the founder of QuadrigaCX who died in 2018. He was the only one who knew the password to access the $137m or more of holdings of the company’s clients. Leaving an organized estate plan (or even a sticky note with a password scrawled on it) would have eased a lot of tension. See Natalia Angelini’s blog on this, here.
The issues that arise upon one’s death are difficult in the best of cases. Make them easier to address by organizing your affairs so as to assist your estate trustees. Take advantage of the time available now to clean up your estate plan.
Have a great weekend. Stay safe.
As a result of the COVID-19 pandemic, pursuant to the Notice to the Profession, the courts are presently restricted to hearing mainly urgent matters. For civil and commercial matters, this includes “urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.” There is also a broad ability for the court to hear any other matter that it deems necessary and appropriate to be heard on an urgent basis, but these matters will be strictly limited.
In a recent decision, Weidenfeld v Parikh-Shah, 2020 ONSC 2401, the court considered two urgent motions brought by the plaintiff and the defendants, respectively. The defendants sought to have monies that had been paid into court several years ago, paid out from court. The plaintiff sought, among other things, an order prohibiting the payment out of the monies. The decision did not provide details of the background of the litigation between the parties.
The court stated that the parties’ first step is to establish that their respective motions are, in fact, urgent. The court provided some guidance as to what is needed in this regard:
“The obligation is on the moving party to provide cogent, particular and specific evidence to show the court that the relief requested is urgent. Speculative, supposition or theoretical evidence is not good enough. The present environment and limited use of judicial resources mandate that the urgency must be real and immediate.”
Unfortunately for the parties in this case, the court found that their affidavit evidence did not provide cogent evidence to satisfy the court that the relief sought was urgent. The reason for which the defendants had brought the motion seeking to have money paid out of court was not set out in the decision.
The court did consider the category of urgent matters where “immediate and significant financial repercussions may result”, and specifically mentioned (a) matters that may put a person in financial jeopardy; (b) the funding of a business, business venture or construction project, failing which the financial viability of the project is in jeopardy; and (c) the necessity of a person to have resources to pay expenses or an order for the health and safety of a person; as issues that would meet the test of “immediate and significant financial repercussions”.
In the current circumstances, we are continually adjusting to new ways of doing things. This includes bringing court proceedings. Based on the Weidenfeld v Parikh-Shah decision, it is clear that parties will need to provide clear and sufficient evidence to satisfy the court as to the urgency of the matter in order for the court to hear the proceeding while court operations are restricted.
Thanks for reading,
You may also enjoy these other blog posts:
“The Adventure of the Norwood Builder” begins when Holmes and his companion, Watson, are visited by a Mr. MacFarlane, a “wild-eyed and frantic” young man who has been pursued by the police and charged with the murder of Mr. Oldacre, an eccentric and reclusive bachelor. Mr. MacFarlane swears upon his innocence, but his situation is forlorn, as Mr. Oldacre, on the day he was allegedly murdered, prepared a holograph Will in which he gave everything to Mr. MacFarlane.
Upon inspection of the holograph Will, Holmes deduces that it was written on a train, since there are some sentences that are clear and discernible, and others which are illegible – “the good writing represents stations, the bad writing movement”. According to Holmes, this corroborates Mr. MacFarlane’s credibility:
“It is curious – is it not? – that a man should draw up so important a document in so haphazard a fashion. It suggests that he did not think it was going to be of much practical importance.”
Holmes becomes more suspicious of the official narrative when he discovers, amongst other things, that prior to his death, Mr. Oldacre transferred his assets to a mysterious unknown, Mr. Cornelius.
In estate litigation in Ontario, it is common practice for litigants to employ handwriting experts to investigate the authenticity of documents and signatures, but they, likely cautious and mindful of their professional reputations, may be less inclined to make such momentous and bold inferences. In cracking the case (spoiler alert!), Holmes certainly employs measures that go far beyond those available to present-day estate litigators, experts, investigators, and the authorities.
Working with some suggestive facts – such as that Mr. Oldacre executed his Will sloppily and that he transferred his wealth to one party while designating another party as his estate beneficiary – Sherlock Holmes deduces that Mr. Oldacre has faked his own death, framed Mr. MacFarlane, and transferred his wealth to the fictitious Mr. Cornelius, who is in fact himself, in order to defraud his creditors. In an effort to vindicate his theory and save Mr. MacFarlane, Holmes invites the police into Mr. Oldacre’s home, instructs Watson to put a match to some straw, and then, when there is a blaze and smoke billowing within the house, Holmes has the police yell “fire”:
“A door suddenly flew open out of what appeared to be solid wall at the end of the corridor, and a little, wizened man darted out of it, like a rabbit out of its burrow. ‘Capital!’ said Holmes, calmly. ‘Watson, a bucket of water over the straw … allow me to present you with your principal missing witness, Mr. Jonas Oldacre.’”
These types of truth-finding artifices, though extreme and unorthodox, are within the purview of the unofficial detective. Estate litigators, on the other hand, operate under the stricter ambit of the Law Society of Ontario, which would likely frown upon such irregular practices.
Thank you for reading – have a great day,
Suzana Popovic-Montag & Devin McMurtry
As we know, due to the COVID-19 pandemic, Ontario has passed emergency legislation allowing for Wills and powers of attorney to be executed and witnessed virtually, and in counterparts. This legislation will remain in effect for the duration of the declared emergency. Although Premier Doug Ford recently announced a plan for reopening Ontario, the timeline for doing so is still vague, and it’s unclear when the emergency will be declared to be at an end. Once the emergency is over, the normal rules for execution of Wills and powers of attorney, as set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26, and the Substitute Decisions Act, 1992, S.O. 1992, c. 30, will once again govern how such documents may be validly executed.
Before coronavirus became such a pressing concern, there was some discussion in the United States, of allowing Wills executed electronically to be considered valid testamentary documents. According to this article in The New York Times, entitled “A Will Without Ink and Paper”, at the time the article was published in October 2019, some states already had laws to allow e-signatures on Wills, and others were looking to adopt similar laws this year.
In the US, the Uniform Law Commission has proposed the Uniform Electronic Wills Act, which is intended to serve as a model for states who wish to enact such legislation. The law would allow testators to complete the entire Will-making and execution process online, without a lawyer or notary present. There are already online services, currently serving states that already have laws allowing electronic Wills, which provide a platform for the creation of these digital Wills.
According to The New York Times article, the process of creating an electronic Will involves a testator creating a Will online, and then having a video-conference call with a notary. The notary will review the document, ask questions of the testator, notarize it, and send it back.
Although the concept of electronic Wills seems convenient, the costs may ultimately outweigh the benefits. As one lawyer quoted in the article states, signing a Will “is not like getting toilet paper delivered by Amazon instead of going to a supermarket…This is a solemn thing that people don’t do every day.” The “inconvenience” of consulting a lawyer, having a Will professionally drafted, and executed in the traditional way, will likely be worth the trouble for most testators, particularly when you consider that this is not a task that needs to be done repeatedly, at frequent intervals (like going to the grocery store to buy toilet paper).
The article mentions a number of points as to why electronic Wills may not be such a great idea. Without a lawyer’s involvement, there is a heightened risk for undue influence to go undetected. Testators with significant assets that may be structured in complicated ways, or who have unique family situations, such as a blended family, are not likely to be well-served by the creation (let alone the execution) of a Will online, without estate planning advice from a lawyer.
Desperate times call for desperate measures, and it is helpful to have alternate methods of executing Wills and powers of attorney in these unprecedented times. But when life goes back to normal, I think we can be comfortable with the return to the “old-fashioned” way of executing Wills and powers of attorney. Although some may consider the process to be cumbersome, the added protection for testators, and the comfort of an estate plan that takes into account each testator’s unique situation, is worth the price.
Thanks for reading,
You may also enjoy these other blog posts:
Natalia Angelini recently blogged about some helpful tips from LawPRO on how to minimize the risk when virtually witnessing Wills and powers of attorney. On April 24, LawPRO posted another helpful article about the risks of “renting out” your signature as a virtual witness.
The emergency legislation requires that one of the witnesses to a Will that is executed by means of audio-visual communication technology (which now temporarily meets the Succession Law Reform Act, R.S.O. 1990, c. S.26 requirement that the testator and witnesses be “in the presence of” each other), be a Law Society licensee. This means that some of us may be asked to be witnesses to a Will or power of attorney that we did not prepare ourselves. However, as LawPRO points out, simply being a witness does not necessarily mean that we will not be held responsible if there are problems with the Will or power of attorney.
Some of the issues that may arise could include the following:
- Problems with the Will or power of attorney not being executed properly, in accordance with the requirements for due execution and the specific requirements of virtual execution pursuant to the temporary legislation.
- The Will or power of attorney not reflecting the testator or grantor’s wishes. This may arise if a testator or grantor prepares their own Will or power of attorney from an online service or kit, resulting in a document that is likely not tailored to the testator or grantor’s particular situation, financial circumstances, and wishes.
- Technical errors in the document, such as the omission of a residue clause, which can drastically impact the distribution of the testator’s assets.
LawPRO has provided some tips for how to protect yourself if you are asked to be a witness to a Will or power of attorney that you did not prepare (although the tips seem equally applicable if you did prepare the document in question):
- Take detailed notes.
- Send a reporting letter following the execution of the document and confirm the scope of your retainer.
- Record the signing (with the client’s permission).
You may also consider having the testator or grantor sign a limited retainer agreement, before you witness the Will or power of attorney, which explicitly sets out that you have been engaged only for the purpose of witnessing the document, and not to review it or provide any legal advice.
Thanks for reading, and stay safe!
These other blog posts may also be of interest:
Representatives of the Courts of Ontario, the Ministry of the Attorney General and various stakeholder representatives are meeting regularly in order to deal with the COVID-19 crisis and the courts’ response to it.
At present, the Ministry and the courts are working towards a further expansion of the courts. To date, since the declaration of the emergency, the Superior Court of Justice has heard about 1,000 matters, being motions, conferences and pre-trials. However, it is hoped that the types of matters to be heard and the number of matters can be expanded in the near future.
Committees are currently considering the expansion of court services. Priorities being discussed include:
- Identifying a Document Sharing Platform to be used by judges, counsel and parties;
- Identifying a Video Conferencing Platform to be used by judges, counsel and parties; and
- Determining a protocol to be used by court staff for supporting virtual hearings.
It is expected that the selection of a Document Sharing Platform will be made by next week, with the other items to be in place shortly thereafter. While there is no set time frame, once the systems are put in place, there will be an announcement with respect to the expansion of court services.
It would appear that once these systems are put in place, there will be no turning back. Virtual hearings, at least to a certain extent, will be the new norm. Previous attempts to modernize the court by allowing virtual attendances, through a service called CourtCall, did not gain much traction. However, I suspect that there is now a greater appetite for and comfort with virtual hearings. Further, it is likely that the hearings will be supported by better document management and document filing facilities; something that was lacking under past experiments.
And stay safe.