In estate litigation, examination of non-party witnesses is often done. For example, it is common for parties to seek discovery of the solicitor(s) who assisted the deceased with their estate planning. Where the deceased’s solicitor is not already a party to the proceeding, the Court may grant a party leave to examine the solicitor in limited circumstances pursuant to rule 31.10 of the Rules of Civil Procedure. Today, I will discuss the test that needs to be met in order to examine a non-party and review a recent case that illustrates this test.
Test for Leave to Examine a Non-party
The test for leave to examine a non-party for discovery is set out in Rule 31.10. First, the non-party must have information relevant to a material issue in the action, and must not be an expert retained by or on behalf of a party in preparation for litigation. Second, the Court must be satisfied that:
- the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
- it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
- the examination will not,
i. unduly delay the commencement of the trial of the action,
ii. entail unreasonable expense for other parties, or
iii. result in unfairness to the person the moving party seeks to examine.
Boe v Whitby
The recent decision of Boe v. Whitby, 2021 ONSC 6998 out of the Ontario Superior Court of Justice provides a good example of how the test in Rule 31.10 is applied.
In Boe, the plaintiff was the only surviving child of the late Beverly Boe (“Ms. Boe“). The defendant was the estate trustee and sole residual beneficiary of Ms. Boe’s estate. Ms. Boe was predeceased by her parents, whose Wills provided Ms. Boe with an income during her lifetime and on her death, the residue of their estates was to be paid to Ms. Boe’s surviving child – i.e. the plaintiff. TD Canada Trust subsequently paid the plaintiff the funds from his grandparents’ estates. However, the plaintiff transferred these funds to Ms. Boe’s estate based on an alleged misrepresentation by the defendant. The plaintiff brought an action to recover the money.
The defendant then brought a motion for leave to examine the plaintiff’s former lawyer, Ms. Reid, on the basis that the plaintiff discussed estate and inheritance matters with Ms. Reid. The Court denied the defendant’s motion.
In its endorsement, the Court states that the “starting point is that privileged communications are only to be disclosed in exceptional circumstances and communications between lawyers and clients are generally sacrosanct.” In this case, the information that the defendant was seeking to obtain through examination of Ms. Reid could be obtained through production of records held by TD Canada Trust. The Court reasoned that before encroaching on the sanctity of solicitor/client privilege, the defendant ought to be obliged to pursue other avenues of inquiry. As such, the motion was premature and dismissed on that basis.
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The rapid growth of digital assets is outpacing legislation. While model legislation exists, many regions across the world have been slow to adapt to the fast-moving pace of technology.
As cryptocurrency has demonstrated, people have been amassing significant assets that need to be protected. However, legislation alone is not enough to protect these digital assets.
Join the webinar to hear from these experts on why a combination of digital estate planning and a legislative regime that recognizes fiduciary access to digital assets will be needed.
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- The checklist for digital estate planning
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On October 21, 2021, I attended The Advocates’ Society’s “Young Advocates’ Fireside Chats on Advocacy” featuring The Honourable Justice Breese Davies of the Ontario Superior Court of Justice. Before her appointment to the bench in August 2018, Justice Davies practised criminal, constitutional and administrative law at both the trial and appellate levels. At the fireside chat, Justice Davies discussed her unique experiences and background, what she wished she knew earlier in her career, and the importance of creating a sustainable life. Below are just a few of the invaluable practice tips and pieces of advice that Justice Davies had to offer young litigators.
- Be authentic. Do not try to fit the mold of what you believe the “best” advocate ought to look and sound like. Instead, be true to yourself and play to your strengths. The most important thing is to be confident and effective in what you have set out to do. Prepare and present yourself in a way that works best for you.
- Think like a judge. It is often said that law school teaches people to “think like a lawyer”. However, what litigators should be striving to do is to think like a judge. When a case goes to trial, the lawyer will likely know the most about that case that they will ever know, whereas the judge will only just be starting to engage with the case. When you’re able to meet the judge where they’re at, you will become a more effective advocate.
- Practice issue-based advocacy. Written and oral advocacy should focus on the issues to be determined by the judge. Litigators should tell the judge what the hard issues are going to be and explain why the judge should decide those issues in their favour. You should also think about what exactly the judge will be producing – such as an endorsement or written judgement – so that you can give the judge something to help them with that process.
- Use your time wisely. For most lawyers at the beginning of their career, it is difficult to say no to work or opportunities for professional development. However, to avoid over-extending yourself, it is important to be selective and intentional with respect to your commitments. When deciding what activities or engagements to devote your limited time to, you should consider where you will be able to contribute the most.
- Find an outlet. Being a lawyer can be tough on one’s mental health. Early on in your practice, you should get in the habit of making time for things that you love (e.g. walk your dog, cook, run). When you do things that help you decompress and recharge, you will have more energy and be more productive when you get back to work. This is key to building a sustainable and enjoyable practice.
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When a person makes a claim for dependant support from an estate, the application is usually commenced as against the estate trustee of the estate alone. The beneficiaries are not usually parties.
Rule 9.01 of the Rules of Civil Procedure provides that a proceeding may be brought against an estate trustee without joining the beneficiaries as parties (subject to certain exceptions as set out in the Rule).
However, special provisions of Part V of the Succession Law Reform Act, which addresses support of dependants, require service on others involved in the estate. Specifically, s. 63(5) of the Act requires that “all persons who are or may be interested in or affected by” an order for support must be served with the Notice of Application in accordance with the Rules of Civil Procedure before an order for support may be made.
Such an “interested person” is entitled to be present and to be heard at the hearing.
The court may dispense with the need for service where every reasonable effort has been made to serve those entitled to notice, and where it is not possible to identify all of the persons entitled to notice.
Who an “Interested party” is, is not defined. However, guidance may be taken from case law addressing who has standing to challenge a will. Clearly, beneficiaries named under a deceased’s will, or intestate heirs would be affected by an order for support, and would be entitled to notice.
Arguably, creditors of an estate would be affected by an order for support, as the support payments may take priority over their claim. See our blog on the priority of support orders, here.
Often, the dependant support claimant has limited information about the estate and who the “interested parties” in the estate might be. The estate trustee usually has this information. Therefore, the initial Order Giving Directions will often address this by requiring that the estate trustee arrange for service of the Notice of Application for dependant support on the interested parties known to the estate trustee.
As to the manner of service, as the person being served is not a party, “personal service” or an “alternate to personal service”, as defined in the Rules of Civil Procedure, is not likely required. Under Rule 16.01(3), the document can likely be served by mailing a copy to the interested party, or by email, if the court allows this. Good practice is to specify a manner for service in the Order Giving Directions.
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On October 1, 2021, the Law Commission of Ontario released its Final Report focusing on legal issues related to palliative care, end-of-life care and medical assistance in dying (collectively described as “last stages of life”).
One of the major areas for reform identified in the Report is dispute resolution for persons who are dying and those who support them. On this point, the Report notes:
Death, dying, and bereavement are highly emotional and important experiences for everyone involved – patients, family, friends and health care providers. Conflicts in the last stages of life may revolve around health care decision-making, a preference for treatment, or concerns about the quality of care being provided. Disagreements can take place in multiple care settings about many different matters. Disputes may involve patients, SDAs [substitute decision-makers], family members, health care facility and providers.
Current mechanisms in place for resolving disputes during the last stages of life include accessing the Consent and Capacity Board (a tribunal created under the Health Care Consent Act that adjudicates disputes related to capacity and decision-making), or the Superior Court of Ontario. For people in care, the Final Report also notes that some health care facilities have a “step up” dispute resolution process that can be accessed, for example, when communications between substitute decision-makers and treatment teams become polarized, which brings in bioethicists, risk managers, social workers or spiritual chaplains to provide information and guidance.
However, these measures can also fall short when dealing with conflicts arising during end-of-life care. The Final Report points out:
- Not all facilities have a “step up” dispute resolution process, meaning not all patients and substitute decision-makers have access to an early dispute resolution process before applying to the Consent and Capacity Board.
- The Consent and Capacity Board may not hear all disputes that deal with end-of-life care and may decline jurisdiction if:
- there is a dispute as to the validity of a Power of Attorney for Personal Care or a dispute over who is authorized to act as an individual’s substitute decision-maker;
- a patient or substitute decision-maker applies for directions because their wishes are not being followed by the patient’s treatment team; or
- a physician withholds or withdraws treatment and declares a patient dead or brain dead, and thus no longer a patient.
- Some patients also die before their applications are heard by the Consent and Capacity Board.
- It can take months to appeal a decision from the Consent and Capacity Board to the Superior Court. Currently, the Health Care Consent Act provides that appeals from Board decisions are to be scheduled “at the earliest possible date compatible with a just disposition”, but does not specify any actual timelines.
- Proceedings in the Superior Court, such as an appeal or an application for an emergency injunction, tend to be more complex and expensive than proceeding before the Consent and Capacity Board, and are often delayed, making them less suitable for end-of-life disputes where time is often of the essence.
After consulting with the public, focus groups and experts, and commissioning multiple expert research papers on topics salient to the last stages of life, the Law Commission has made a number of recommendations, including:
- The introduction of province-wide informal mediation services for end-of-life care, which would serve as an early dispute resolution mechanism and could be accessed by patients, substitute decision-makers (such as powers of attorneys), health care providers, and health care facilities.
- A review of the mandate and jurisdiction of the Consent and Capacity Board, including updating the Board’s powers to be more responsive to end-of-life cases.
- Amending the Health Care Consent Act to expedite appeals from the Consent and Capacity Board to the Superior Court of Justice that involve the last stages of life.
At this time, it is unknown whether the recommendations of the Law Commission will be implemented. However, in the meantime, a step that individuals can take to reduce potential conflicts and disputes from arising during the last stages of life is engaging in advanced health care planning. The Final Report notes:
Not enough people are planning for the last stages of life … Planning has been shown to improve patient outcomes; ensure alignment between a person’s values and treatment; lessen family distress; decrease hospitalizations and admissions to critical care; and decrease unwanted investigations, interventions, and treatments. Yet fewer than 1 in 5 Canadians have engaged in advance care planning.
Steps that you can take today include:
- appointing a substitute decision-maker, such as a Power of Attorney for Personal Care, to make decisions on your behalf;
- discussing your wishes, values, and beliefs with your substitute decision-maker. The Final Report points out that “[t]he law is clear that [substitute decision-makers] must consider the patient’s prior capable wishes, values, and beliefs, if known and applicable.”
- completing an advance directive or “living will,” which sets out your wishes in terms of future care.
Thanks for reading, and have a great day!
For further reading on advance care planning, see the following blog posts:
Locating a Will after death can often be a challenge. Fortunately, the Law Society of Ontario (“LSO”) has resources that can assist with this task. The LSO maintains a resource page with advice on how to locate a Will. Some of the tips include:
- Contacting the lawyer or paralegal who may have prepared the Will directly. The LSO has a lawyer and paralegal directory that can assist by providing information about current lawyers and paralegals. (However, this route can only assist if the lawyer or paralegal who prepared the Will is known.)
- Search the court to see if the Will was deposited with the court. (However, experience tells us that very few Wills are deposited with the court.)
- Search Willcheck.ca or NoticeConnect to see if they have a record of the Will. The benefit of a search through NoticeConnect is that they can send a notice to their mailing list of lawyers and paralegals asking about knowledge of a particular Will.
- Contact the LSO. They may be able to assist in locating a Will prepared by a former lawyer or paralegal.
The LSO has prepared an infographic setting out steps that can be taken to locate a will.
As always, foresight is the best practice. After a Will has been drafted, it is always advisable for the testator to communicate with the named estate trustee(s) to advise them of the location of the Will. After all, there is little benefit to a careful estate plan if the Will cannot be readily located. Telling the estate trustee where this important document can be found can make the already difficult job of being an estate trustee a little easier.
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Blended families – a family where some or all of the children in the family are not the natural or adopted children of both spouses – are becoming increasingly common. While most individuals are attuned to the emotional difficulties that could arise when blending two families, many might not consider the estate implications that arise upon blending. It is prudent to revise an estate plan upon blending families in order to ensure any children from a previous marriage are not inadvertently disinherited.
While many married individuals might hold assets jointly with their partner so as to minimize tax consequences upon death, this might not be wise when estate planning for a blended family. Additionally, implementing a “standard” Will, whereby upon death of the first spouse, all assets are left to the surviving spouse, could result in an unintended disinheritance of children from a previous marriage. For example, if the surviving spouse dies intestate, then their assets would pass to only their children, not their step-children.
One way to avoid the aforementioned situation would be to create a testamentary spousal trust. Under a testamentary spousal trust, a testator can provide for a spouse during their lifetime, while ensuring that the capital of the assets are preserved for children from a prior marriage or any other beneficiary the testator chooses to benefit.
Consider the following scenario:
Jack and Jane, two divorcees, are planning to get married. Both have children from their previous marriages. Jack wants to ensure that, in the case he dies first, Jane will benefit from the income generated from his assets, but that the capital will ultimately go to his children from his first marriage. Jane wants to ensure a similar outcome if she dies first.
In order to ensure that Jane is financially supported during the remainder of her life, Jack could set up a testamentary spousal trust in which Jane is paid all income from his capital assets. Generally, the trustee is given discretion to encroach on capital should he or she feel it is necessary. On Jane’s passing, the trustee would distribute Jack’s assets in accordance with the trust provisions (likely to his children from his first marriage).
Testamentary spousal trusts are not appropriate in all situations, so it is important that spouses in blended families carefully consider their estate planning options with an experienced lawyer and financial advisor.
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A question that is often asked by plaintiffs is, “when does the clock start ticking to bring my claim?”
In Ontario, there are with certain exceptions, two limitation periods for plaintiffs to bring their claim and the rule of discoverability. First, pursuant to section 4 of the Limitations Act, 2002, no claim shall be brought after two years from the day on which the claim was discovered.
The second limitation period, which is known as the ultimate limitation period, as per s. 15(1) bars claims from being made after the 15th anniversary of the day on which the act or omission took place.
In New Brunswick there are statutory limitations for bringing claims along with the doctrine of discoverability. First, pursuant to section 5(1)(a) of the New Brunswick Limitation of Actions Act (“LAA”), no claim shall be brought after two years from the day on which the claim was discovered. Second, according to section 5(1)(b), no claim shall be brought after fifteen years from the day on which the act or omission on which the claim is based occurred. Section 5(2) further states that a claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a) that the injury, loss, or damage had occurred, (b) that the injury, loss, or damage was caused by or contributed to by an act or omission, and (c) that the act or omission was that of the defendant.
In the decision of Province of New Brunswick v. Grant Thornton, 2020 NBCA 18, the Court of Appeal of New Brunswick established the test for when a limitation period is triggered. They focused on the view that s. 5(1)(a) does not begin to tick until the plaintiff has discovered their claim. In their view, “the two-year limitation period begins to run the day after the plaintiff knows or ought reasonably to have known facts that confer a legally enforceable right to a remedy” (Para 7).
A year later, the Supreme Court of Canada came to a different conclusion in Grant Thornton LLP v. New Brunswick, 2021 SCC 31. Here, the Court enforced a new standard for when a plaintiff has the requisite degree of knowledge to discover a claim under section 5(2) of the LAA, which in turn affects the two-year limitation period under s. 5(1)(a). Going forward the standard to be enforced is whether “the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn” (Para 42).
Although Grant Thornton arose from legislation in New Brunswick, it is plausible the Court’s decision will have implications for how Ontario’s Limitations Act, 2002 and the discoverability doctrine will be interpreted going forward.
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A recently released report by Johan David Michels, Sharon Hartung and Christopher Millard entitled “Digital Assets: A Call to Action” identifies significant difficulties faced by estates, estate trustees, planners, beneficiaries and their solicitors in dealing with digital assets.
The authors surveyed over 500 members of the Society of Trust and Estate Practitioners (“STEP”) around the world.
The key findings of the report are:
- Digital assets have become a common part of modern estate planning and estate administration, with demand for advice expected to increase significantly in the future.
- Clients seeking digital asset advice in relation to both estate planning and estate administration, with social media and email accounts topping the list of most-asked-about assets.
- Clients frequently experience difficulty accessing digital assets on death or incapacity of a family member, causing distress and frustration.
- Third-party service providers can present practical, procedural and legal obstructions to both estate planning and estate administration.
- There is wide variation in policies, practices and tools for dealing with clients’ digital assets, highlighting the need for more education for practitioners on best practices.
- Law reform is needed to enable effective estate planning and estate administration for digital assets.
The report concludes with a call to action. “Accessing digital assets after a loved one’s death can pose a challenge. As digital assets become more prevalent and our lives become increasingly entwined with digital technologies, the need for effective solutions becomes ever more critical. These solutions require a joint response. Bodies such as STEP and its members need to engage with governments and service providers globally in order to produce industry solutions and best practices that will help families plan for their futures with certainty and clarity.
The report also contains links to useful resources for practitioners dealing with digital asset issues.
Thank you for reading.
In Lipiec v. Lipiec, 2021 ONSC 6292 (CanLII) the court ordered on September 22, 2021, that the original will be produced by the deceased’s second wife to the son of the deceased.
In Szabo Estate v. Adelson, 2007 CanLII 4588 (ON SC) the former solicitor for an estate was allowed to assert a solicitor’s lien over the original of a deceased’s will for payment of legal fees.
In Polten & Associates v Resch, 2015 ONSC 3930 (CanLII) the court ruled on the claim for a solicitor’s lien after the original will had been released, and found against the claim by the lawyer as follows:
“It is the position of Mr. Polten that his law firm has a solicitor’s lien over the Estate assets, “including those assets which appear to have been deliberately excluded from Resch’s calculation of the undistributed Estate proceeds.” And further that, the Polten law firm “did not withhold the Will through the exertion of a solicitor’s lien” and it should now be paid its outstanding fees “for reasons including the lien it could have then claimed, and has now in fact claimed as part of the process leading to this motion….” .
Mr. Justice J.B. Shaughnessy ruled, “I reject Mr. Polten’s argument that he has a solicitor’s lien and that this constitutes a financial interest in the estate.”
In summary, it appears that a lawyer can assert a solicitor’s lien on an original will for unpaid legal fees and can do so by retaining possession of the original will until the matter is dealt with by the court or the claim is otherwise resolved.
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