Category: Podcasts

22 Jun

Commorientes

Paul Emile Trudelle Beneficiary Designations, Estate & Trust, Estate Planning, Hull on Estates, Trustees, Uncategorized, Wills 0 Comments

“People whose deaths are so close to each other (being caused by the same calamity) that it is not possible to determine who died first.” In other words, simultaneous deaths. In its adjectival form, the word is “commorient”, as in “commorient death”.

In Ontario, commorientes are addressed by Part IV of the Succession Law Reform Act. The impact of Part IV was addressed by Natalia Angelini in her blog, here.

Essentially, in Ontario, where two or more persons die at the same time or in circumstances rendering it uncertain which of them survived the other or others, the property of each person shall be disposed of as if he or she had survived the other or others.

This rule does not apply in all jurisdictions. In P.E.I., for example, pursuant to the Commorientes Act, where two or more persons die in circumstances rendering it uncertain which of them survived the other or others, the presumption is that the deaths occurred in the order of seniority, and accordingly, the younger shall be deemed to have survived the older.  This would also apply to policies of insurance and jointly held property. There is an exception in the P.E.I. legislation, however, where a testator and a beneficiary under a will die at the same time or in circumstances rendering it uncertain as to which of them survived the other, and the will provides for a gift over if the beneficiary does not survive the testator. In those cases, the will is to be given effect as if the beneficiary had not survived the testator.

In Alberta, the legislation regarding the exception goes one step further: the presumed survivorship regardless of age applies where there is a will or statute that makes provision for a distribution operative if a person dies or before or at the same time as another person: ie, on an intestacy.

As an illustration of the effect of the different survivorship regimes, consider the case of Re Mandin (Estate), 1998 ABCA 165 (CanLII). There, a son killed his mother, stepfather and two sisters. The mother left a will leaving her estate to her children. In light of the murder, the son was precluded from inheriting. The court had to consider whether the estate passed on an intestacy to the children’s father (the deceased’s first husband), or to the deceased’s mother. The court held that the intestate legislation of Alberta contained gift-over provisions where the children predeceased the mother or died at the same time. The estate therefore passed to the deceased’s mother. The same result would occur in Ontario under Ontario’s survivorship legislation. In P.E.I., the likely outcome would be that the mother was deemed to predecease the children (being older than them), and therefore her estate would pass to the children upon her death, and then to their father upon their deaths, which are deemed to be immediately after their mother’s death.

In the U.S., many states have adopted the Uniform Simultaneous Death Act, which provides that persons who are each other’s heirs under a will or on an intestacy will be deemed to have predeceased the other if they die within 120 hours of one another, unless there is a specific clause in the will that deals with this eventuality. This avoids the issue trying to determine an order of death where deaths happened contemporaneously, and also the issue of having property pass through two estates, and the costs, taxes and delays associated with this result

Have a great weekend.

Paul Trudelle

15 Jun

Who Can Force The Sale of A Property?

Paul Emile Trudelle Beneficiary Designations, Estate & Trust, Estate Planning, Hull on Estates, Trustees, Uncategorized, Wills 0 Comments

This question is addressed in the June 8, 2018 decision of Justice Nishikawa in Galsan Holdings Inc. v. Davalnat Holdings Inc., 2018 ONSC 3600 (CanLII).

There, a corporation, Seabrook Properties Inc. (“Seabrook”), owned a commercial property (actually, the application involved two different corporations owning two different properties, but each property was addressed on the same basis). For sake of simplicity, I will only discuss one of the properties). The corporation was owned by Galsan Holdings Inc. (“Galsan”), as to 50%, and Davalnat Holdings Inc. (“Davalnat”), as to the other 50%. Galsan was, in turn, wholly owned by a Mr. Gallo, and Davalnat was wholly owned by a Mr. Calvano. Gallo and Calvano were the officers and directors of Seabrook.

The business relationship between Gallo and Calvano broke down, and Gallo and his company Galan brought an application for partition and sale.

The application was dismissed. The court held that Gallo and Galsan did not have the requisite standing to bring the Application. Under s. 2 of the Partition Act,

All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by curtesy, mortgagees or other creditors having liens on, and all other parties interested in, to or out of, any land in Ontario may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.

In considering the section, the court applied an Ontario Court of Appeal decision, Greenbanktree Power Corp. v. Coinamatic Canada Inc., which held that a person with “an interest in the land” has a prima facie right to compel partition or sale. Only a person or corporation “entitled to the immediate possession of an estate in property” may bring an action or make an application for its partition or sale.

In the case before the court, the property was owned by Seabrook. The shareholders, Galsan and Davalnat, did not have a possessory interest in the property. The shareholder of Galsan, Mr. Gallo, was “a further step removed” from the property, and similarly had no prima facie right to partition.

There was no suggestion that Seabrook was holding the property as a bare trustee. If the property was owned by a corporation as a bare trustee, the beneficiaries may be considered to have an interest in the land, and may be entitled to compel a partition or sale.

Although the application was dismissed, it is not that the parties are without a remedy. Gallo and Galsan had also commenced an oppression remedy proceeding, seeking a winding up of Seabrook. This proceeding continued.

For another discussion of partition or sale proceedings see my blog, here.

Have a great weekend.

Paul Trudelle

14 Jun

The Eastman Estate: The Original Kodak Moment

Garrett Horrocks Capacity, Estate & Trust, Estate Planning, General Interest, Hull on Estates, In the News, Litigation, Public Policy, Wills Tags: , , , 0 Comments

On a recent trip to Rochester, New York, my fiancée and I had the pleasure of touring the George Eastman Museum and came across an interesting piece of estates lore.

George Eastman, the founder of Kodak and a pioneer of bringing photography to the mainstream, died leaving a Will drawn in 1925.  As his wife had predeceased him and they had no children, Mr. Eastman devised all of his real property and left a substantial cash legacy to his closest family member, his niece, Ellen Dryden.  Mr. Eastman’s estate held significant assets, and the value of liquid assets alone was estimated as exceeding the equivalent of USD$35 million today.

However, on March 9, 1932, only five days before his death, Mr. Eastman had a change of heart with respect to the distribution of his estate.  Rather than leave the bulk of his estate to an individual, Mr. Eastman wished to ensure that his legacy would be one of service to the community that had fostered his photography empire.  True to form as a philanthropist and benefactor of local enterprise, Mr. Eastman executed a Codicil to his Will, changing the primary beneficiary of his estate from his niece to the University of Rochester.

The testamentary dispositions under the Codicil represented a significant deviation from those under his Will.  Typically, where a testator’s dispositions vary substantially from one instrument to another, concerns may arise with respect to the their testamentary capacity or the presence of undue influence.

A shrewd entrepreneur in his own right, Mr. Eastman recognized the risk that the Codicil might later be the subject of scrutiny or litigation.  On the date the Codicil was to be executed, Mr. Eastman hosted a gathering at his residence and invited many guests and acquaintances.  He devoted time to speaking to each individual guest about topical, personal subjects so that they could attest to Mr. Eastman’s soundness of mind in the event that a certain disgruntled niece chose to commence a Will challenge.

In a way, Mr. Eastman’s goal is not too dissimilar from some of the criteria that are relied on even today to assess a testator’s capacity.  Third-party evidence that a testator appeared to be of sound mind immediately prior to the execution of a testamentary document may help a trier of fact draw a favourable conclusion with respect to capacity.  While the formal criteria to assess capacity primarily consider a testator’s appreciation and understanding of his or her assets, Mr. Eastman’s clever scheme demonstrates that he turned his mind to questions about his own capacity and took steps to mitigate the risks.

Mr. Eastman’s Codicil was not later subject to any litigation, and the University of Rochester received a handsome distribution out of his estate.

Thanks for reading.

Garrett Horrocks

12 Jun

Hull on Estates #548 – Four Corners versus Armchair

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In today’s podcast, Jonathon Kappy and Kira Domratchev discuss the British Columbia Court of Appeal decision of Killam v Killam (2018) BCCA 64, and the “four corners” approach versus the “armchair” approach in interpreting the testator’s intention.

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

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29 May

Hull on Estates #547 – Test for Mutual Wills

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This week on Hull on Estates, Paul Trudelle and Doreen So discuss the test for mutual wills in the decision of Rammage v. Estate of Roussel.

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15 May

Hull on Estates #546 – Attorneyship planning options

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This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss attorneyship planning options and the importance of full consideration of what may seem like basic options in protecting the interests of clients during periods of mental incapacity.

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

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02 May

What will you do for long term care?

Suzana Popovic-Montag Elder Law, Elder Law Insurance Issues, Estate & Trust, Estate Planning, Health / Medical, Hull on Estates, Power of Attorney, Trustees, Uncategorized, Wills 0 Comments

One of the challenges with demographic trends is that they tend to fly under the radar until they are suddenly upon us.

Ensuring there is adequate care for our aging population is a prime example. The oldest members of the baby boom generation are now in their early 70s, and for the most part haven’t made their way into retirement homes and long term care. In short, there’s no problem so far.

But fast forward 10 years and we may see the issue. According to the Conference Board of Canada, more than 2.4 million Canadians aged 65 or more will require paid and unpaid care support by 2026. That’s 71% more than required care in 2011. By 2046, that number is expected to rise to 3.3 million people, which is almost 10% of Canada’s current population. You can read more about the demographic trends here.

The prognosis is clear: the demand on the health care sector and assisted care facilities is only going to increase. And there is bound to be a lag in government response because governments will always deal first with any crisis at hand before dealing with future needs. For example, there is typically overcrowding in schools before new schools are built. Long term care will likely be no different.

The question is, what can each of us do on an individual basis to plan for the care we might need?

What’s your plan?

Since none of us can predict the future, the safest course of action is to assume that you will need care at some stage of your later life. According to the Ontario Long Term Care Association, the average age of a long term care resident is 85, with 90% of residents having some form of cognitive impairment and one in three using a wheelchair. There is a very real chance that you will be in that situation some day.

So what can you do now? If you’re a baby boomer, there are a few steps you can take to increase your opportunity for adequate care if you should need it. These include:

  • Having a power of attorney for both finances and personal care
  • Ensuring you have a guaranteed income stream in your later years (such as annuities or pensions). For example, you may want to defer your receipt of Canada Pension Plan payments as late as possible (age 70) to maximize your guaranteed income in later years
  • Considering products such as long term care insurance that can pay a benefit if you need care.

New products might also emerge. This recent article in the Globe and Mail discusses longevity insurance – a deferred annuity that pays out later in life.

In short, the private long term care sector may be filling the gaps in the system to an even greater degree in the future, and having the means to pay for this private care can ensure you have the care you need.

Thank you for reading … Enjoy the rest of your day,
Suzana Popovic-Montag

 

01 May

Hull on Estates #545 – The availability of summary judgments

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In today’s podcast, Ian Hull and Rebecca Rauws discuss the availability of summary judgments, and their use in estate litigation, in the context of the recent Ontario Court of Appeal decision in Aird & Berlis LLP v Oravital Inc., 2018 ONCA 164.

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

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17 Apr

Hull on Estates #544 – Consolidation of Family Law Act and Dependant Support Claims

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Today on Hull and Estates, Stuart Clark and Umair Abdul Qadir discuss the recent decision in Cohen v Cohen, 2018 ONSC 1613, in which the Honourable Justice Maranger discussed the Ontario Superior Court of Justice’s jurisdiction to consolidate applications for equalization commenced pursuant to the Family Law Act with applications for dependant’s relief under Part V of the Succession Law Reform Act. You can read more about the Cohen decision on our blog.

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03 Apr

Hull on Estates #543 – The Uncertainty of Death and RRSP Taxes

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In today’s podcast, Noah Weisberg and Sayuri Kagami discuss the Alberta decision of Re Morrison Estate, 2015 ABQB 769, and the issue of who is responsible for the often hefty taxes payable on registered accounts of a deceased person: the beneficiary of the account or the deceased’s Estate.

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

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