Category: TOPICS

09 Jul

Estate Litigation – Submission of Rights to the Court

Stuart Clark Estate Litigation Tags: , , , , , , , , , 0 Comments

Estate litigation exists in a somewhat unique corner of the litigation world for as a Will can potentially have numerous beneficiaries, each of whom could receive differing amounts from the estate, the potential individuals who could be impacted by any court decision can often extend beyond the parties actively participating in the litigation. As estate litigation can be both emotionally and financially expensive, if you are a beneficiary who only was to receive a relatively modest bequest of say $5,000, you may question whether it can be financially justified for you to retain a lawyer to actively participate in the litigation or whether you should just throw your hands up and not participate. Although the final decision of whether to participate will be case specific to the beneficiary in question, there may be a third option other than actively participating or simply not responding, being that you can formally “submit” your rights to the court.

The concept of “submitting” your rights to the court is in effect a formal declaration to the court that you will not be actively participating in the litigation but that you would still like to be provided with notice of certain steps. By formally submitting your rights to the court the plaintiff is required to provide you with written notice of the time and place of the trial, as well as a copy of the eventual Judgment. You are also personally insulated from any costs award that may be made in the proceeding (other than incidentally as a beneficiary of the estate should costs be awarded out of the estate).

The potentially most attractive incentive to formally submitting your rights to the court however may be that in the event any settlement is reached amongst the other parties that no Judgment may be issued implementing the settlement unless the court is provided with your consent to the settlement or an affidavit confirming that you had been provided with a copy of settlement and had not served and filed a “Rejection of Settlement“. Such a requirement could provide you with the opportunity to object to any settlement before it is implemented, potentially sidelining any settlement that you believe unfairly impacted your interest in the estate.

The process by which an individual can “submit” their rights to the court is governed by rule 75.07.1 of the Rules of Civil Procedure, with the individual submitting their rights to the court being required to serve and file a “Statement of Submission of Rights to the Court“.

Thank you for reading and stay safe and healthy.

Stuart Clark

08 Jul

Court Distrusts Stranger to the Will

Suzana Popovic-Montag Wills Tags: , , 0 Comments

A new Saskatchewan Court of Appeal case sheds more light on the law of standing with respect to will challenges. In Adams Estate v. Wilson, the Appellant executor appealed an earlier decision in which it was held that the Respondent, Mr. Wilson, had legal standing to bring an application to have the deceased’s will proved in solemn form. Mr. Wilson purported to be the deceased’s long-time friend and employee, and he submitted that the deceased had promised to leave him her “ranching operation”; despite this claim, the deceased did not name Mr. Wilson in her will. Instead, she imbued her executor with the discretionary power to distribute the estate to deserving parties, including “certain persons who have been trustworthy and loyal”.

The Chambers judge reasoned that since the statute, Rule 16-46, allows an application by a person who “may be interested in the estate”, Mr. Wilson, as potentially both a creditor and beneficiary, may have been an interested party and therefore had standing. Mr. Wilson succeeded in qualifying himself as a potential creditor because of a related action against the estate. His claim to be a potential beneficiary, though murkier, also succeeded; the claim was that since Mr. Wilson had been “trustworthy and loyal”, the executor could choose to give him a part of the estate in adherence with the will – making him a potential beneficiary.

The Court of Appeal allowed the appeal, finding that Mr. Wilson was a mere “stranger to the will” and, as such, did not have standing. Rather, only the following classes of persons, with specific financial or legal interests in the estate, have standing to challenge a will: (1) Those named as beneficiaries or otherwise designated in the will or other testamentary documents; (2) those to whom the estate would devolve under an intestacy; and (3) those with claims pursuant to The Dependants’ Relief Act, The Family Property Act, and The Fatal Accidents Act. The Court explained that creditors, as Mr. Wilson claimed to be, do not have standing because they have no gain in “interfering with the devolution of property”.

The Court also found fault with Mr. Wilson’s claim to be a potential beneficiary, which was described as disingenuous, circular, and disconnected:

He ignores that his purpose in requesting standing is to challenge the validity of the Will and the very bequest upon which he based his claim of standing. This is perverse logic because, if successful, Mr. Wilson will have eliminated any chance that he would take under the Will.”

Mr. Wilson was trying to derive rights from a will he was repudiating and suggesting that he might receive a gift from an executor whose legitimacy he denied and against whom he was litigating. He was attempting to win on a legal technicality – on form in spite of substance. In addition to reiterating the parties who may challenge a will, the Court in Adams Estate v. Wilson has put another brick in the wall between those seeking to exploit legal technicalities and the successful results they seek.

Thank you for reading – have a wonderful day,

Suzana Popovic-Montag & Devin McMurtry.

07 Jul

Hull on Estates #593 – Dependant Adult Child: Issues on an Intestacy

76admin Estate Litigation, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, Wills Tags: , , , , 0 Comments

This week on Hull on Estates, Stuart Clark and Kira Domratchev discuss a finding of support for an adult dependant child in Deleon v Estate of Raymon DeRanney, 2020 ONSC 19.

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 Stuart Clark.

Click here for more information on Kira Domratchev.

07 Jul

Dependant Support – Quantum of Support

Stuart Clark Support After Death Tags: , , , , , , , , , 0 Comments

Yesterday I blogged about the recent Deleon v. Estate of Raymond DeRanney (“Deleon“) decision wherein an individual who was not the Deceased’s biological or adopted child was declared to be a dependant “child” of the Deceased in accordance with Part V of the Succession Law Reform Act (the “SLRA“) due to the Deceased having shown a “settled intention” to treat the Applicant as their child during their lifetime. Although my blog from yesterday went into some of the detail of what the court considered when determining that the Applicant was in fact a “child” of the Deceased who was entitled to support, it did not get into the quantum of support that the Applicant was entitled to receive as a “dependant child”.

The factors that the court is to consider in determining the quantum of support for a dependant are established by section 62 of the SLRA, and include:

  • the dependant’s current assets and means;
  • the assets and means that the dependant is likely to have in the future;
  • the dependant’s capacity to contribute to his or her support;
  • the proximity and duration of the dependant’s relationship with the deceased; and
  • the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living.

In Deleon the Deceased died intestate with one biological child leaving an estate valued at approximately $1.5 million, which under normal circumstances would be distributed solely to the biological child on an intestacy. Upon being declared a dependant “child” of the Deceased in accordance with Part V of the SLRA, the Applicant attempted to argue that she should equally share the Deceased’s estate with the biological child akin to if she was a biological child of the Deceased on an intestacy, an argument which, if accepted, would result in the Applicant receiving approximately $750,000 from the Deceased’s estate.

In support of her position that she should be entitled to receive 50% of the Deceased’s estate in support, the Applicant cites to Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, in which the court confirms that it can consider “moral” obligations and what is “adequate, just and equitable” under the circumstances when determining the quantum of support, and that the court is not necessarily limited to the factors delineated in section 62 of the SLRA. The Applicant also pointed to the accustomed standard of living which she had enjoyed while previously living with the Deceased.

Upon reviewing the jurisprudence in reference to the Applicant’s circumstances, Madam Justice Dietrich ultimately determines that the appropriate sum of support to be paid to the Applicant is the lump sum of $40,955, with such an amount being justified as being enough to get the Applicant through the remainder of her University degree, with the Applicant being required to be independent thereafter. Such an amount is of course notably less than the approximate $750,000 sought by the Applicant in the Application.

The Deleon case provides an excellent reminder that just because you are a “dependant” of the Deceased it does not necessarily follow that you will receive a significant sum in any support payment, as the court will consider your specific circumstances when setting the quantum of support.

Thank you for reading and stay safe and healthy.

Stuart Clark

06 Jul

Dependant Support – Can someone who is not your biological/adopted child be a dependant child?

Stuart Clark Support After Death Tags: , , , , , , , , , , , , , , , 0 Comments

The average “family unit” (if such a thing ever truly existed) is becoming harder to define in 2020. With the rise of concepts such as “co-parenting“, as well as the growing ubiquity of step-parents from second (or third, or fourth) marriages, the expectations and reality associated with the parent/child relationship is evolving. Although such an evolution is almost certainly predominantly for the better, it can create some unique complications should one of the “parents” die unexpectedly, particularly should they die without a Will. Such a scenario is exactly what was recently before the court in Deleon v. Estate of Raymond DeRanney (“Deleon“).

In Deleon, the Deceased died intestate with no married spouse and one biological child, such that the entirety of their estate would under normal circumstances be distributed to their biological child. The Applicant, who was not the Deceased’s biological child but was rather the child of the Deceased’s ex-girlfriend from approximately 20 years prior, commenced an Application for support under Part V of the Succession Law Reform Act (the “SLRA“) alleging that the Deceased had treated her as his “child” and had provided her with support during his lifetime. In support of such a claim, the Applicant cited to the fact that the Deceased had allowed her and her mother to reside with him for several years prior to his death even though the Deceased and her mother were no longer romantically involved, and that, although she was not residing with him at the time of his death, the Deceased was subsidizing her rent to the tune of approximately $500 per month. She also cited to the fact that the Deceased had historically paid for things such as the Applicant’s extra-curricular activities, summer school, groceries and vacations throughout the Applicant’s childhood, and had encouraged her to attend University which she was in the process of attending.

The definition of “child” within Part V of the SLRA includes someone who the deceased individual had a “settled intention” to treat as their child. As a result, if an individual can show that a deceased individual had a “settled intention” to treat them as their child, and the individual otherwise meets the remainder of the factors required to be a “dependant” of the deceased, the individual can receive support as a dependant child notwithstanding that they are not biologically related to or legally adopted by the deceased.

In considering whether the Applicant met such a “settled intention” definition in Deleon, Madam Justice Dietrich considers the factors delineated in Hyatt v. Ralph, which include:

  • did the “parents” pool their income into a joint account?
  • did the “parents” pay the expenses for all children out of this same account?
  • did the child in question refer to the man as “daddy” or the woman as “mommy”?
  • did the “parents” refer to themselves as “mommy” and “daddy”?
  • did the “parents” share the task of disciplining the child?
  • did the child participate in the extended family in the same was as a biological child?
  • was there a change in surname?
  • did the “parent” express to the child, the family and the world, either implicitly or explicitly, that he or she is responsible as a parent to the child?

Perhaps interestingly in the Deleon decision, although Madam Justice Dietrich found that the relationship between the Deceased and the Applicant did not generally meet any of the factors to be considered from Hyatt v. Ralph (the Applicant referred to the Deceased as “Uncle Raymond” who undoubtedly spoiled her but did not necessarily fulfill the “typical” parental role), Madam Justice Dietrich nonetheless found that the Deceased’s conduct in relation to the Applicant demonstrated a “settled intention” on the part of the Deceased to treat the Applicant as a “child”, and that as the Applicant otherwise would receive nothing from the Deceased’s estate on an intestacy she was entitled to support from the Deceased’s estate as the Deceased’s dependant “child”. In coming to such a conclusion Madam Justice Dietrich states:

In my view, [the Deceased’s] support of [the Applicant] in these ways rises above affection and generosity. Despite the atypical family relationships between [the Deceased, the Applicant’s mother, the Deceased’s biological child, and the Applicant], [the Deceased’s] support of [the Applicant] demonstrates his settled intention to treat her as a member of his unconventional family. I find that [the Applicant] is therefore a dependant for the purposes of the SLRA.”

Thank you for reading and stay safe and healthy.

Stuart Clark

02 Jul

Thoughts About Art

Noah Weisberg Executors and Trustees, In the News Tags: , , , , , , , , , , 0 Comments

With so much taking place around us now, I forced myself to choose a topic for today’s blog that, although still estates related (this being, after all, an estates blog), allows me to think about something beautiful.  I landed on art.

Full disclosure: I have blogged about art and estates before.  See here and here for some shameless self-promotion.  Without wanting to revisit these topics, I did some searching and was intrigued by this Financial Times article about the Art Loss Register (ALR).

The ALR is the world’s largest private database for lost and stolen art, antiques, and collectibles.  Their services are essentially twofold.  First, the ALR assists to deter the theft of art by promoting the registration of all items of valuable possession on its database and also the expansion of checking searches.  Second, by operating a due diligence service to sellers of art, the ALR operates a recovery service to return works of art to their rightful owners.  In addition, the ALR has expanded to negotiate compensation to the victims of art theft and the legitimising of current ownership.

In addition to art dealers, insurers, and museums, the ALR also assists private individuals including beneficiaries and trustees.  A trustee who is intending to liquidate art may wish to rely on the ALR to prove title and authenticity, thereby potentially increasing value and mitigating risk of fraud.

Noah Weisberg

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30 Jun

Changes to Consent and Capacity Board Coverage

Noah Weisberg Capacity, In the News Tags: , , , , , , , , , 0 Comments

Legal Aid Ontario has published a notice setting out changes to coverage for Consent and Capacity Board appeals.

Effective June 23, 2020, Legal Aid Ontario is making the following changes to its certificate coverage:

    1. an additional 10 hours will be offered to the current 25 hours allocated on the CCB appeal tariff. This increases total coverage to 35 hours
  1. a new 10-hour certificate for motions for emergency/urgent CCB treatment orders held in the Superior Court is being introduced

The full notice can be found here.

If you have applied for CCB appeal coverage from March 13 onward, Legal Aid Ontario will be contacting you regarding the notice.  If you have not heard from Legal Aid Ontario, you should contact them directly.

Any attempt to increase access to justice, is always welcome.

Noah Weisberg

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29 Jun

Don’t Worry Be Happy

Noah Weisberg Capacity, Health / Medical Tags: , , , , , , 0 Comments

Yes, you’re reading this blog on a Monday.  As week days go, Monday isn’t nearly as fun as a Thursday, or Friday.  But that doesn’t mean you should be unhappy.  A recent study purports that repetitive negative thinking is linked to cognitive decline.

The authors of the study propose that repetitive negative thinking may be a new risk factor for dementia.  Based on various tests, the study found that when compared to non-pessimists, people who think negatively have a greater buildup of certain proteins in the brain that cause Alzheimer’s disease (the most common type of dementia), a worse memory, and greater cognitive decline.

Based on this correlation, it is believed important to think happy thoughts.  Whether you are a glass half empty or half full kind of person, the brain can be trained to be more optimistic.  This can be done in a number of ways, including:

  • meditating – one study found that only 30 minutes a day over a two week period produced a measurable change in the brain
  • practicing gratefulness – taking a few minutes each day to write down what you are thankful for
  • reframing negative thoughts –changing your perspective on a situation to give more of a positive or beneficial meaning to you

As Bobby McFerrin sings, ‘In every life we have some trouble / But when you worry you make it double / Don’t worry, be happy / Don’t worry, be happy now’.

Happy Monday,

Noah Weisberg

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25 Jun

Ministry of the Attorney General: Returning to Court

Katherine Mazur Estate & Trust, Estate Litigation, Litigation, News & Events, Recently Tags: , , , , 0 Comments

In Ontario the courts have been rapidly adapting their practice and procedures in response to the COVID-19 pandemic. Beginning on July 6, 2020, the Superior and Ontario Court of Justice will now be further expanding its operations. The date is dependent on approval from the Chief Medical Officer of Ontario.

The Ministry of the Attorney General (“MAG“) has established an incremental plan to prepare courthouses to facilitate the return of full court operations in Ontario. MAG has announced that Phase One will be implemented on July 6, 2020 in a limited number of courthouses and courtrooms.  Court operations will continue to expand with a targeted completion date of November 1, 2020. 

I will briefly highlight some of the takeaways from MAG’s strategy for re-opening:

Phase One:

  • Reopening of 74 courthouses and 149 courtrooms across Ontario;
  • Workplace safety considerations are being implemented throughout courthouse and courtrooms including the installation of plexiglass barriers, hand sanitizer stations, and distance markers. There will also be increased screening procedures for those entering any courthouse and caps on the number of occupants in each room;
  • Each courthouse will have risk assessment conducted so that the proper preventative measures can be put into place;
  • Virtual hearings will continue as we gradually phase back to in-person appearances.

MAG has yet to clarify on the types of in-person court appearances that will be heard during Phase One. Since the declaration of the emergency, the Superior Court of Justice has heard many “urgent” matters, being motions, case conferences, and pre-trials. It is hoped that the types of matters that are to be heard will be expanded as a part of Phase One. 

In the meantime, counsel should continue to utilize and embrace the new technologies offered by the Courts to schedule virtual hearings and integrate them into their regular practice. Rather than waiting for a complete re-opening of the Courts, lawyers should be prepared to “attend” virtual hearings in order to best serve clients and provide them with access to justice. 

Thank you for reading and stay tuned!  

Katherine Mazur

23 Jun

Tips for Successful Remote Mediation

Katherine Mazur Estate & Trust, Estate Litigation, General Interest, Litigation, Mediators Tags: , , 0 Comments

The COVID-19 pandemic has changed the way the legal profession works at least on a temporary basis. In Ontario, lawyers are required to embrace technology to facilitate dispute resolution and to move files along. Mediations, discoveries, and Court hearings are being conducted virtually via videoconference. Today I will consider some of the benefits of remote mediation and then tips on how to master it.

Benefits: 

  • Cost – cost will inevitably be lower as it will be organized on an online platform. 
  • Convenience – The mediation can be arranged on short notice, as all parties can participate from their location of choice. Travel and the associated costs are no longer an issue. Participation of parties that might not have otherwise be available to participate in mediation may now be accessible. 

Tips for Successful Remote Mediation:

  • Ensure your client is set up with the proper technology: a computer equipped with webcam, microphone, and speakers. Lawyers cannot assume that every client has access to a computer and quick internet connection. 
  • Consider using a 3rd party provider such as Neesons Court Reporting & Mediation, to host the mediation. This provider can facilitate the movement of parties in and out of plenary and breakout rooms, summon the mediator, arrange a counsel-to-counsel meeting, and assist with technical issues. This will ultimately save the parties time and expense. 
  • Ensure your clients are aware of privacy and confidentiality within meeting rooms. Client comfort is essential for a successful mediation. 
  • A lack of personal interaction means that your client may not be able to warm up to a mediator, which often times is necessary for a successful mediation. An effective mediator will structure a meditation in a way to facilitate adequate confidential one-on-one communication with the parties to assist with resolving the limitations of working with a
    mediator through a video link rather than in person. 
  • Take lots of breaks as attending virtual mediation is more tiring than in person. 

Thanks for reading!

Katherine Mazur

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