Category: PODCASTS / TRANSCRIBED
Hull on Estates #586 – Can a word document be a valid Will?
In today’s podcast, Jonathon Kappy and Sydney Osmar discuss the difference between strict compliance and substantial compliance regimes regarding the formality of Wills.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #585 – Applications and Actions: What’s the Difference?
In today’s podcast, Stuart Clark and Garrett Horrocks review some of the main procedural differences between the two primary types of legal proceeding in Ontario: the application, and the action.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #584 – Retroactive Effect of Proof of Death
This week on Hull on Estates, Natalia R. Angelini and Kira Domratchev discuss a recent decision on the retroactive effect of proof of death in Threlfall v Carleton University, 2019 SCC 50 that dealt with a pension case from Quebec.
A helpful Canadian Lawyer magazine article by Elizabeth Raymer summarizing this decision can be found here.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #583 – Oppression Remedies
This week on Hull on Estates, Noah Weisberg and Doreen So discuss a recent decision on oppression remedies in Corber v. Henry and how corporate issues may arise in estate matters.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #582 – Informal Trust Arrangements
This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the recent Ontario Court of Appeal decision in Rubner v Bistricer, and the law regarding informal trust arrangements.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #581 – Minimal Evidentiary Threshold in Will Challenges
On today’s podcast, Paul Trudelle and Rebecca Rauws discuss the recent decision of Naismith v Clarke, 2019 ONSC 5280, and the minimal evidentiary threshold test for will challenges.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #580 – Elder Law Issues
On today’s podcast, Natalia Angelini and Rebecca Rauws discuss elder law issues, including the increasing prevalence of such issues in our practice, the different viewpoints on damages, and the need for more case law in this area.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #579 – Webb v Belway: dependant support and misbehaving spouses
In today’s podcast, Noah Weisberg and Sydney Osmar discuss Webb v Belway, 2019 ONSC 4602, a recent case from the Ontario Superior Court of Justice, where the court had to consider whether a common law spouse’s conduct towards the end of the deceased’s life, which included misappropriating funds as attorney for property, should be taken into consideration in determining whether she is entitled to support.
If you would like to read more about the case, see Natalia Angelini’s recent blog here.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Hull on Estates #578 – Grewal v Litt: The Issue of Testamentary Freedom and Potential Discrimination
In today’s podcast, Jonathon Kappy and Sayuri Kagami discuss Grewal v Litt, 2019 BCSC 1154, a recent case out of BC where 4 sisters sought to have the court vary their parents wills that left almost 96% of the parents’ estates to the applicants’ 2 brothers. The applicants claimed that the parents failed to make adequate provision for their proper maintenance and support as a result of cultural discrimination that favoured sons over daughters.
If you’d like to read more about the case, see Garrett Horrock’s recent blog here.
Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.
Testamentary Freedom versus a Moral Obligation to Provide: Striking a Balance
A recent decision of the Supreme Court of British Columbia examined the tension between a testator’s moral obligation, if any, to provide for a child under a will, and that testator’s freedom to dispose of his or her estate as that testator sees fit.
The facts in Grewal v Litt are relatively simple and were generally not in dispute between the parties. The applicants were the four daughters of the two testators whose wills were under scrutiny. The respondents were the testators’ two sons. The testators had died leaving mirror wills, each benefitting one another. Upon the death of the survivor, the wills left modest bequests of cash to each of the daughters, while the two brothers shared the residue.
The combined values of the estates exceeded $9 million. Pursuant to the terms of the wills, each daughter was to receive a bequest of $150,000, or about 1.5% of the total value of the two estates. The two brothers were the sole residuary beneficiaries and stood to split the remaining 94%.
The daughters brought an application to vary the wills under section 60 of British Columbia’s Wills, Estates and Succession Act (the “WESA”) to provide an equal distribution of the residue between all six children. The application was brought on the basis that the testators had purportedly discriminated against the applicant daughters based on their adherence to traditional cultural values. The respondent brothers agreed that the terms of the wills did not fulfill the testators’ moral obligations to the daughters, but did not agree that the solution was an equal distribution of the residue.
The court grappled with the tension between the need to make proper provision for the daughters versus recognizing the testators’ broad testamentary freedom to dispose of their estate as they see fit. Ultimately, the court found substantially in favour of the daughters and held that each daughter would be entitled to a 15% share in the residue, with the respondent brothers each receiving a 20% share.
In reaching that decision, the court first looked at section 60 of the WESA and noted that the value of the estates was large enough that the court could both consider the parents’ testamentary autonomy in favouring the respondent brothers while nonetheless making adequate provision for the applicant daughters.
The application judge then referred to numerous prior decisions in which the court had ordered variations of wills when unequal testamentary distributions were made by testators who believed themselves to be bound by cultural norms. Finally, the judge noted that the significant contributions by the daughters to the testators during the last few years of their lives, which were not replicated by the brothers, enhanced the testators’ moral obligation to provide for the daughters.
This case’s potential impact in Ontario remains to be seen, although it is important to the note that Ontario lacks a statute with as broad a mandate for varying testamentary documents as the WESA. Part V Ontario’s Succession Law Reform Act is a comparable parallel that allows a court to make adequate provision for a testator’s dependants, but that language is less broad than the language of the WESA. In any event, the Court of Appeal for Ontario held in Spence v BMO Trust Company that absent any requirement by a testator to adequately provide for a dependant, the testator has broad testamentary freedom.
Thanks for reading.