We wrote several months ago about the declining value of household furniture and other items – especially antiques that were highly desired decades ago.
The general rule if you’re selling home assets (typically in an estate or when moving into a retirement home situation) is that you won’t get as much as you think. Tastes change (grandfather clock anyone?), artists fall out of favour (or never gain much market value) and items fall into disrepair. And you usually have to pay a firm to come in and assess and sell the contents. It may not leave you with much.
Mind the small stuff
What can often get overlooked in content sales is the little stuff. We all bring our personal biases when assessing what’s junk and what could be a little treasure. If you see a figurine or small carving and don’t like it, you’ll assume that others won’t like it either. Under the weight of all the other junk you have to dispose of, the item can end up in the trash.
That can be a costly mistake. I was recently visiting an estate home being prepared for sale, and the daughter of the deceased pointed to a small ceramic cat at the end of the mantle. It was, to me, nothing much of note. It was about 2 inches high and 3 inches long and had stripes. I wouldn’t have thought twice about trashing it if I was clearing out the house.
That’s what the daughter thought too, until they had a friend over who identified the cat as an original ceramic piece by Swedish artist Lisa Larson. What was going to end up in the trash was actually a small sculpture worth hundreds of dollars. Oops …
Be mindful of the art-savvy owner
If a homeowner had a good eye for art during their lifetime, there’s a good chance that even small knick-knacks were bought with purpose and could have value. So, before you clear the little stuff off the mantle of someone’s home, it may pay to have an art-savvy friend tour the house just in case.
Thanks for reading – enjoy your day,
Mutual wills are a common tool used by two (or more) people who wish to preserve a will (or specific provisions thereunder) by entering into an agreement to avoid future changes. This is a particularly useful tool in blended families where partners have children from prior relationships, and both want to ensure that their children are equally provided for post-death.
The requirements for an application of the doctrine of mutual wills are three-fold: (1) there must be an agreement between the individuals who made the wills, which amounts to a contract; (2) the agreement must be proven by clear and satisfactory evidence; and (3) it must include an agreement not to revoke wills.
Once one of the parties to a mutual will agreement dies, the survivor is then bound by that agreement not to revoke his or her will. Typically, we see mutual wills cases arising after the death of both spouses, once it is discovered that the surviving spouse drafted a new will in breach of their mutual will agreement or disposed of assets contrary to their agreement.
The recent case of Nelson v Trottier grappled with a novel issue with respect to mutual wills: whether, in light of the existence of a mutual wills agreement, beneficiaries to a survivor’s estate could claim a constructive trust over her assets while she was still alive.
The applicants in this case were the deceased’s children. They were not beneficiaries under their father Bill’s will, but were beneficiaries under his wife Huguette’s will. After making a donation in Bill’s honour, the applicants sought, among other things, a declaration imposing a constructive trust over Huguette’s assets and preventing her from gifting property without further order of the court or the consent of the applicants.
After establishing that a mutual wills agreement existed between Bill and Huguette, the court then examined when a constructive trust is established. In deciding this issue, Justice Pattillo stated,
“in circumstances where one of the parties to a mutual wills agreement has died, however, and based on the nature of a mutual wills agreement and the purpose of imposing a constructive trust in respect of such agreement, it is my view that a constructive trust does not arise until either the survivor dies or earlier, in the event there has been a breach of the agreement by the survivor”
Since Huguette was still alive, the question became whether she had breached the mutual wills agreement by making the donation in Bill’s honour. Justice Pattillo ultimately found that Huguette had not breached the mutual wills agreement. His reasons included that the agreement provided that both Bill and Huguette would give the survivor all of their property absolutely and that the surviving spouse could deal with the property as absolute owner while alive (which includes the ability to make gifts).
Interestingly, Justice Pattillo acknowledged that the mutual wills agreement stipulated that the survivor could not dispose of “substantial” portions of the property received during his or her lifetime in order to defeat the agreement; however, he did not find that the donation given to be “substantial” in comparison to the size of the estate.
The application seeking, among other things, a declaration that there was a constructive trust over Huguette’s assets, was ultimately dismissed.
Thank you for reading!
The city of Toronto was abuzz this past weekend as we kicked off summer 2019 with wall-to-wall sunshine. There were so many wonderful things to celebrate this weekend. For some, celebrations continued over the Toronto Raptor’s historic NBA Championship win. Some were tapping their feet to the beat for the first weekend of Toronto’s Jazz festival. Others, like myself, were flooding the streets to celebrate one of the city’s largest, loudest, and most colourful parades of the year – the Toronto Pride Parade.
Pride festivities provide a great opportunity to come together with others to celebrate and promote the equal rights of all persons regardless of gender or sexual orientation. While there, I reflected on some key considerations for LGBTQ+ individuals to consider in the context of estate planning in Ontario.
1. The value of a will
A will is an invaluable tool to assist people in planning for the future. The Succession Law Reform Act, RSO 1990, c. 26 (“SLRA”) gives individuals the power to dispose of property post-death.
Provided that your will meets the statutory requirements to be valid (which are prescribed in Part I of the SLRA) testators are free to dispose of their property as they wish. This a right regardless of sexual orientation or gender and includes couples that are in common-law relationships and same-sex marriages.
Importantly, the will provides a testator with a level of control over how children are provided for post-death. This is especially important in scenarios where parents rely on assisted reproduction as a method of conceiving a child. Having a will allows a testator to specifically name children and outline how that child is to take under the will. For more information about this, click here.
2. Rules of Intestacy
If you die without leaving a will, your estate will be subject to the rules of intestacy which are governed by Part II of the SLRA. Under these rules, married couples are entitled to take their spouses property absolutely if the deceased is not survived by issue. On July 20, 2005 the Parliament of Canada enacted the Civil Marriage Act, which legalizes same-sex marriage and provides in section 2, that, “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others”. This definition replaced the former definition which described marriage as the lawful union between a man and a woman. As a result, same-sex spouses are entitled to take from their spouses estate on an intestacy.
In contrast, common-law relationships do not share this privilege, regardless of whether it is a heterosexual or homosexual common-law relationship.
3. Incapacity During Lifetime
An important consideration for LGBTQ+ individuals is also what would happen in the event that they become incapable of making decisions regarding their health care and property. Although laws vary by jurisdiction, legal and biological family, such as spouses (sometimes including common-law partners), children and parents, will generally be favoured over other persons who may have a close but legally unrecognized, relationship with the incapable person. This could have a negative impact on an individual whose non-accepting family members step into a decision-making role for them.
4. Dependant Support Claim
If you fall under the definition of a “dependant” under Part V of the SLRA, which could apply to same-sex common-law relationships and spouses alike, you may be entitled to make a dependant’s support claim against your partner’s estate.
Thank you for reading!
Ian’s questions and answers from Wednesday’s blog on various topics, including death and golfing, led me to consider another issue: people dying on a golf course.
One of my favourite scenes from my favourite movie, Caddy Shack, involves a Bishop playing the best round of golf of his life in a raging rainstorm. When asked if play should continue, greens keeper Carl Spackler (Bill Murray) advises: “I’d keep playing. I don’t think, the heavy stuff’s going to come down for quite a while.” The Bishop plays on, misses his final putt, and turns to curse the sky, whereupon he is struck by lightning. See the clip, here.
Although the Bishop lived (but renounced God), many others have not been as lucky.
According to Golfsupport.com, golfing (with 1.8 injuries per 1,000 people) is more dangerous than rugby (only 1.5 injuries per 1,000). In the U.S., golf carts are responsible for 15,000 injuries per year. 40,000 golfers seek treatment each year for injuries caused by errant golf balls and flying club heads.
Golf Digest has published a list of “The 10 Worst Ways To Die On a Golf Course”. These include:
- A man who was fatally kicked in the chest when a group of golfers lost patience with the man while he was searching for a lost ball.
- A man in Ireland who died after a rat ran up his leg, urinated and bit him while the man was searching for his ball in a ditch. The rat carried the fatal Weil’s disease.
- A man who died after slamming his club against a bench after a poor shot. The club shattered, and a piece of the club pierced his chest.
There is no shortage of complications, stress and potential expense that can occur when a will cannot be located following a party’s death. This is particularly true in Ontario, where the law provides for a presumption of revocation with respect to lost wills: namely, a will will be presumed to be revoked by destruction when the original will cannot be located after the death of the deceased.
Pursuant to Rule 75.02 of the Rules of Civil Procedure, the validity and contents of a will that has been lost or destroyed must be proved by way of an Application before the Court. As the Ontario Court of Appeal held in Sorkos v Cowderoy,  O.J. No. 3652, a party who seeks to prove a lost will bears the onus to prove due execution of the will; provide particulars tracing possession of the will to the date of the testator’s death; provide proof of the contents of the will; and rebut the presumption that the will was destroyed by the testator with the intention to revoke it.
As we have blogged on previously, will registries are a mechanism which may help parties avoid a missing will debacle altogether. One such registry is the new Canada Will Registry, launched this past May 2019 by NoticeConnect. While NoticeConnect has previously specialized in assisting estate practitioners and trustees to advertise for creditors, and to publish notices looking for missing wills, their blog advises that the development of the Canada Will Registry will aim to provide a comprehensive, Canada-wide system for finding wills.
According to the NoticeConnect website, the Canada Will Registry will enable lawyers and firms to upload the basic information about wills they are storing, and to organize, transfer and receive related digital records. Once the Canada Will Registry amasses 100,000 wills, the program will enable the ability for will searches to be submitted.
When someone is searching for a will, NoticeConnect will publish a Knowledge of a Will notice and its system will compare and cross-reference the search terms against the system’s registered wills. If the terms match with a registered will, the registry will notify the registering firm or company, and provide them with the searcher’s contact information. The platform is used by lawyers, trustees, banks, and government.
It will be interesting to see how technology will continue to develop and assist the legal community, and how effective the advancement of will registries will be in combating the challenges of lost or missing wills.
Thanks for reading!
Answers to every question are now online. But often, a question pops into our head only to vanish quickly from our thoughts when the triggering moment disappears. And we forget to look up the answer later.
Enough. I chose a single day and made notes of the first 4 questions that randomly popped into my head. At the end of the day, I researched the answers (okay, not all of them are shocking). Here’s what I found.
Q. What exactly is an heirloom tomato?
I went to a small, high-end grocery store and saw heirloom tomatoes for sale. My first question of the day – what are they?
Hah! Just as I expected. This is a completely unregulated designation. Real heirloom tomatoes are grown from seeds that a farmer carefully selects and passes down from season to season. No genetic modifications, no weird DNA alterations. They may be wildly coloured and shaped, but the good ones will have fabulous taste.
However, no one is monitoring this – it’s buyer beware. So, stick to heirlooms from places you trust, or buy directly from farmers at farmers markets. Bon Appetit has a great overview here.
Q. How do Mick Jagger and Paul McCartney keep great hair?
Mick delayed his 2019 tour because he needed medical treatment. That led to this second question.
But alas, still no answer. Both of these 70-something musicians are still in the public eye – a lot – but their hair has barely changed since the 1960s. Clearly work has been done. But try to find out what exactly – so frustrating! At least this 2012 article alludes to hair dye carefully applied to Jagger’s mane. McCartney won’t be far behind.
Q. Where do urban animals die?
I found a big, fat dead raccoon on our front patio. It was on its back, all four limbs in the air. The city agreed to take it away, but it got me wondering – where do these animals go to die? This was the first dead animal on my property in 20 years.
My quick research didn’t yield a lot, likely because the answer is a mix of things. They retreat to their home or other hiding place to die. They get eaten by other animals soon after death. They get picked up by the city when someone reports it. But I did learn from PBS that raccoons only have a lifespan of two to three years in the wild, so don’t let the lack of carcasses fool you. The dead are among us.
Q. How do 150lb golfers hit the ball 300 yards?
Watching a PGA tournament on TV had me gawking at a little guy – Emiliano Grillo from Argentina. He’s 26 years old, stands 5 foot 9 and weighs 141 lbs. He was hitting his drives over 300 yards!
I’m way bigger than that and can barely hit 200 yards on a good drive. I went looking for answers. This was the best article I found. Golf pros hit millions of practice balls and know how to regularly hit the sweet spot on the club face. When you hit the sweet spot, the ball travels much further. Of course, a fluid swing that generates great clubhead speed is the other half of the equation.
The best advice in the article? Swing smoother, not harder. You’ll hit the sweet spot more often and your ball will travel further.
Thanks for reading!
Ian M. Hull
In my previous blog on the benefits of estate planning for millennials, I canvassed some of the ways in which today’s young adult generation differs from the young adults of generations past. One such difference is the increased prevalence of common law relationships in today’s millennial cohort. In a wide-ranging public opinion poll conducted in 2018 by the Angus Reid Institute, 53% of Canadian adults expressed feeling that marriage is “simply not necessary.” This attitude is reflected in rising rates of common law marriage in Canada: as Global News reports, while only 6.3% of Canadians were in common law relationships in 1981, this figure jumped to 21.1% by 2016.
While common law couples may feel no emotional difference from any formally married couple, there are significant differences between some of the legal rights that common law and married couples enjoy. In the estates context in Ontario, for example, common law spouses are treated differently than married spouses when one spouse dies without a Last Will – also known as dying “intestate”. This blog summarizes the relevant law and difference in treatment, below.
Common Law Spouses Have No Entitlement on Intestacy
In Ontario, Part II of the Succession Law Reform Act RSO 1990, c S 26 (the “SLRA”) governs how one’s assets will be divided if a person dies intestate.
Pursuant to sections 44 and 45 of the SLRA, when a person dies intestate and leaves behind a surviving spouse and no children (or “issue”), the surviving spouse will be entitled to the entirety of the deceased’s estate.
If the deceased leaves behind a surviving spouse and any children, the surviving spouse will get the first $200,000.00 of the estate (being the current SLRA “preferential share” value). If there is one child, the remainder of any residue is divided equally between the surviving spouse and child. If there is more than one child, the spouse will receive a third of the balance of any residue, while the remaining children will share the other two-thirds equally.
If the estate’s net value after debts, funeral and administration expenses is less than the present SLRA’s “preferential share” value, the surviving spouse is wholly entitled to the deceased spouse’s estate, irrespective of whether there are any surviving children.
Notably, however, the definition of “spouse” in this section does not encompass couples who are not formally married. For the purposes of intestacy, the SLRA adopts the definition of spouse found in section 1 of the Family Law Act, RSO 1990, c F 3, which reads:
“spouse” means either of two persons who:
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)
As such, only married spouses are entitled to benefit under the intestacy regime. While a common law spouse may potentially seek redress by making a dependant’s support claim against their deceased spouse’s estate, for example, they are not entitled to a share of their deceased partner’s estate pursuant to the laws of intestacy.
Given the above, it is all the more important for common law spouses to turn their minds toward formulating an estate plan wherein they provide for their partner accordingly.
Thank you for reading!
Die-hard Raptors fans, band-wagon followers, and even sport-neutral citizens alike could not deny the energy in the Toronto air this past Friday, June 14. This day followed the Raptors’ historic four-point defeat of the Golden State Warriors in game six of the 2019 NBA playoffs the night prior, as well as the raucous, joyful celebrations which rang through the city until the early hours of the morning. The Raptor’s win marks the first time in their 24-season history that the Raptors will be graced with the title of NBA Champion.
In my view, one of the most interesting parts of the Raptors’ championship is the sense of community, togetherness and connectedness to Toronto which the team’s journey has inspired. On Friday morning, the CBC broadcasted clips of fans who had tuned in to cheer the Raptors to victory during game six, both in Toronto, across Canada and internationally. While some of the interviewed members of the Raptors’ diverse group of fans and followers were born in Toronto, many had since moved to reside permanently in other cities in Canada and across the world. Despite this, these fans still felt a strong patriotism to Toronto inspired by the team’s fight to the top. The diversity in the team’s fan network is also reflected in the Raptors’ own varied makeup: the team itself is comprised of players from several different countries, including Canada, the United States, England, Spain and Cameroon.
The diversity both in the team’s fans and in its members brought my mind to the legal concept of domicile. In an Estates context, there are two types of domicile: one’s “domicile of origin” is where they are born, whereas one’s “domicile of choice” connotes a new place where a party takes residence, with the definitive intention of residing there permanently. One may also abandon their domicile of choice. In Canada, domicile is determined on a province-to-province basis.
One’s domicile will determine which jurisdiction’s laws will be applicable in particular situations, such as in a dependant’s support claim circumstance, or when one seeks a grant of probate to administrate an Estate, for example. As my colleague Stuart Clark wrote about previously, however, two Canadian cases – Tyrell v Tyrell 2017 ONSC 4063 and Re: Foote Estate 2011 ABCA 1 – seem to suggest conflicting rules surrounding how domicile impacts the administration of one’s Estate. While the Alberta Court of Appeal in Re: Foote Estate stated that the domicile of the Deceased “determines the applicable law for estate administration purposes” – suggesting that it is the testator’s domicile that determines which jurisdiction’s laws are to govern the administration of an estate – the Ontario Court in Tyrell v. Tyrell stated that “for the purpose of administering the Will, the most significant connecting factor is the residence of the estate trustee.” In Tyrell, notwithstanding that the testator died domiciled in a foreign jurisdiction, the laws of Ontario governed the administration of the estate as the Estate Trustee was located in Ontario. Currently, there are no reported cases which cite Tyrell v. Tyrell has been cited to support this rationale. It will be interesting to see how the legal concept of domicile develops in this respect going forward.
In the meantime, we will see how sports, diversity, and the law intersect when the Raptors parade passes by the Hull & Hull offices this Monday.
Thanks for reading!
After making her will, the deceased “whited-out” the name of a beneficiary using white-out or liquid paper. Was this an effective amendment to the will?
This question was answered in Levesque Estate (Re), 2019 BCSC 927 (CanLII). There, the deceased made a formal will which left the residue of her estate to 7 beneficiaries. However, at some point between the making the will and her death, the deceased obscured the name of one of her beneficiaries using white-out. The estate trustees applied to the court for the opinion of the court with respect to whether this “alteration” was effective.
Applying B.C. law, the court determined that the alteration would be effective if either the alteration made the word or provision illegible, or if the alteration was deemed by the court to represent the intention of the deceased to alter the will.
With respect to the first test, the court found that the whited out provision did NOT render the name beneath to be “impossible to read by ordinary inspection … without chemical or other analysis”. Therefore, the alteration was not valid on this basis.
(In another case out of Newfoundland, the court held that provisions were “whited out” to the extent that “no part of the previous text [was] apparent”. Apparently, the testator used a heavier hand when whiting out. In that case, the whiting out of the text was found to be an effective revocation.)
In Levesque, however, the court went on to apply the second test of substantial compliance, and found that the alteration was a “deliberate or fixed and final expression of the Deceased’s intention” to remove the beneficiary from her will. “Carefully dabbing white-out over the provision in question was undoubtedly a considered and deliberate act on the part of the Deceased. She was applying the white-out to the original Will. It was not a casual act. The only reasonable inference is that her intention was to remove the provision from the Will.” The court was able to use its curative powers to give effect to the alteration.
In giving effect to the alteration, the court applied s. 58 of B.C.’s Wills, Estates and Succession Act, which gives the court authority to give effect to the alteration of a will even if there is not strict compliance with the formal requirements of the Act. In Ontario, there is no similar “substantial compliance” provision. It is not clear that the whited-out changes would have been effective in Ontario.
For another blog on white-out and wills, see “Revocation of Wills: White Out of this World”.
Have a great weekend.
In overturning a lower court decision, on May 31, 2019, the Ontario Court of Appeal held that neither contract law nor property law principles govern how to dispose of embryos, where neither party has a biological connection to the genetic material.
Instead, in S.H. v D.H, 2019 ONCA 454 the Court held that the governing legislation and regulations prevail: The Assisted Human Reproduction Act (“AHRA”) and the Assisted Human Reproductions (Section 8 Consent) Regulations (“Consent Regulations”).
In 2011, D.H. and S.H. purchased four embryos (created from anonymous donors) from a lab in the US. Two of the four embryos were viable, one of which resulted in the birth of the couple’s son. The second embryo is stored in an Ontario lab. The couple divorced shortly after the birth of their son, and a dispute arose around the fate of the second embryo.
At the time of purchasing the embryos, the couple entered into two contracts, one with the US based lab, and one with the Ontario based lab. The first contract set out that the frozen embryos would be donated, in the event that the parties are unable to make a decision as to their disposition in the future. The couple also acknowledged that in the event of a divorce, the legal ownership of any remaining stored embryos would be determined in a property settlement.
The Ontario based contract identified D.H. as the “patient” and the S.H. as the “partner”. It set out that in the event of divorce or legal separation, the lab would “respect the patient’s wishes”. When D.H. attempted to proceed with implanting the second embryo, S.H. withdrew his consent.
In the lower court decision, the court looked to the persuasive authority, M. (J.C.) v A. (A.N), 2012 BCSC 584, concluding that the embryos were to be treated as property, governed by the contracts, such that the “patients’ wishes” should be respected.
The Ontario Court of Appeal however, has concluded that Parliament has imposed a consent-based, rather than a contracts-based model through AHRA and the Consent Regulations. Under this legislative format, “donor” is defined to include a couple who are spouses at the time the in vitro embryo is created, even where neither person contributes reproductive material to the embryo. The Court also determined that separation or divorce does not change the donor status of the couple in instances where either both individuals are genetically connected to the embryo, or neither individual is genetically connected to it. Pursuant to s. 10(3) of the Consent Regulations, the donor status is only changed if there is only one genetically contributing former spouse – and it is that individual who will be deemed the sole donor.
The Court went on to consider that the principle of free and informed consent was a fundamental condition to the use of human reproductive technologies. The Consent Regulations reflects that consent is ongoing and is not frozen in time by specifically legislating that the consent of the donor may be withdrawn by either spouse. The Consent Regulations and AHRA criminalizes the use of genetic material without the written consent of the embryo’s donors.
In coming to its conclusion, the Court held that a consent-based model to reproductive technology is “fundamentally at odds with contract law”, and that an individual cannot simply contract out of criminal law, nor the protections that may be afforded to them under that law. Therefore, it was within S.H.’s right to withdraw his consent to the use of the embryo.
In the estate planning context, assisted human reproduction brings with it many considerations which should be taken by the drafting solicitor, such as whether or not the client, or their partner has any stored sperm or ova, whether there is consent to the use of the genetic material post-mortem, if there are any time limitations on its use, and whether or not there is an intention that children conceived with donated sperm/ova posthumously are to be included in the Will, among many others.
To learn more about the impact of assisted human reproduction within the estate planning context, and some practical tips for solicitors, see “Fertility Law Considerations for Estate Lawyers” by Suzana Popovic-Montag.
Thanks for reading!