Category: Estate Litigation
I’ll be honest – there are some things in life that I:
- don’t understand, and
- drive me nuts.
I’m not looking for answers – I don’t really care about the reasons “why.” What I want is to make these things go away. No explanations please – if I was interested in the why, I’d google it to find out.
So, here’s my rant. Five everyday things I don’t understand that I wish would go away:
- Please use revolving door: I’ve opened doors all my life, and there are many perfectly good doors to any office building. But all signs direct you to the revolving door, even if you have to line up to use it, and it takes twice the time to get inside. Don’t stick “emergency door” on a perfectly good and useable door. Give us a choice!
- Put your phone in airplane mode: I’ve left my phone inadvertently in “full on” mode countless times when taking flights. Why do we still have to do this? It’s clearly not a safety risk, or else we’d all be dead by now due to countless passengers ignoring the request. I don’t want to know why they ask us. I just want to stop being told to do it.
- No pass back on Presto card: I load my Toronto Transit Commission Presto card. It deducts cash every time I tap and enter a station or vehicle. I pass the card to my friend on the other side of the turnstile to tap, and it denies the tap. Why? Because you can’t pass back the Presto card. I’ve done this in New York with family dozens of times. With so many riders scamming the system by not paying, why won’t the TTC let me pay for someone else?
- Hospital gowns that tie in the back: I go for my annual physical. I’m told to strip down, and the blue gown I’m given ties in the back. It’s awkward, and I can barely make it work. My housecoat doesn’t tie in the back, why should a medical gown? The doctor is going to look at me front and back anyway – there’s no hiding. I’m tired of sitting with my bare butt on a chair because I can’t wear a hospital gown properly.
- Upsells at a car wash: I’m at a car wash. I’m given three choices: regular wash, luxury wash, or “the works.” The upper end washes promise things like “bottom blaster” and “polish”. Can anyone tell the difference? And yet, I often choose “the works” because I want my car to have every chance at a completely clean beginning. But I feel cheated every time. Give me one wash and one choice.
If you know why these things happen, you should probably keep the information to yourself. If you know how to make these things go away, please call me immediately. In the meantime, I’ll end my rant and head back to work.
Thanks for reading … Have a wonderful (and rant-free) day!
A recent decision of the Ontario Superior Court of Justice considered an interesting question of fact and law. Will challenges in Ontario are ordinarily grounded on the basis that a testator lacked testamentary capacity, did not know and approve of the contents, or that the Will was procured by undue influence. In Cavanagh et al v Sutherland et al, however, the applicant sought to challenge the validity of her mother’s will on novel grounds; namely, that it was procured as a result of a mistake of fact.
The testator died in July 2016, leaving a Will benefiting 5 of her 6 daughters. The Will expressly excluded her sixth daughter, Carolynn, from sharing in the Estate. Carolynn objected to the issuance of a certificate of appointment on the basis that her mother lacked capacity or that the Will was procured by undue influence.
The estate trustees brought a motion for summary judgment seeking an order dismissing Carolynn’s objection and a declaration that the Will was their mother’s valid Last Will and Testament. At the hearing of the motion, Carolynn changed her position and chose instead to focus primarily on her belief that her mother had been operating on a set of mistaken facts.
Carolynn referred to a payment of $65,000 made to her by her parents in or about 2011, prior to the execution of an earlier will that also excluded Carolynn. She took the position that this payment was made in satisfaction of a loan to her father years earlier that her mother knew nothing about. Carolynn argued that her mother likely believed this payment was a gift to Carolynn in lieu of her inheritance and, accordingly, left her no benefit under the Will.
The court found that the evidence held otherwise. Notably, the evidence showed that the payment was not made in satisfaction of a loan, but rather as a result of a demand by Carolynn. In 1996, her parents had agreed to place her on title to a property to assist them in obtaining a mortgage. The mortgage was subsequently paid off in 2011, at which point Carolynn’s parents asked that she transfer her interest in the property back to them.
The evidence showed that Carolynn refused, instead asserting that there was always an intention that she remain on title to the property as legal owner. Carolynn’s parents ultimately offered to buy out her interest in the property in exchange for a payment of $65,000. Her mother later advised the lawyer who prepared the Will that this was to constitute Carolynn’s inheritance. It was clear to the court that the testator had considered this payment when the Will was drafted.
In the end, the evidence was such the court did not have to consider the effect of a true mistake of fact on the validity of a Will. However, the question of a mistake of fact would ordinarily tie into knowledge and approval and, specifically, whether the mistake was sufficient to negate the validity of the Will. In this case, it was apparent that the testator had turned her mind to the payment to Carolynn, and there was no question of a lack of knowledge and approval.
Thanks for reading.
It’s a near universal experience. Almost everyone over age 50 understands the rather uncomfortable, humble experience of the colonoscopy. For me, it wasn’t the worst experience in the world, but when I had my introduction to this procedure many years ago, I remember being delighted to hear that by the time my next one was due, they would likely have an entirely new “non-invasive” procedure in place.
For example, this “camera pill”.
Or these, which include a “virtual colonoscopy” or “at-home stool tests.”
With the profit-driven U.S. health care system just south of us, and the general hatred of the colonoscopy procedure, I knew I’d be in the clear. Bottom line (couldn’t resist that pun) – I’d never have to go through the procedure again.
So, what happened to innovation?
My, how time flies – I’m due for another colon check, but it appears that medical advancements haven’t flown quite as fast. What procedure did my doctor recommend for testing? A colonoscopy of course. Same clinic, same specialist, same 1.5 days of awful prep.
Need I say it? They can put someone on the moon, but they can’t figure out a way to check for colon polyps without a long tube going where you don’t want it to. At this rate, I think we’ll have cities on Mars before I can avoid the indignity of “now, just relax; you’ll feel some pressure, but it shouldn’t be too uncomfortable.”
Think of the positives
I do need to keep the many benefits of our health care system in mind. We live in a country that routinely checks us for common cancers – at no out-of-pocket cost. And let’s face it, not eating for two days highlights the hunger that many people experience daily. So yes, time for an attitude reset and a positive mindset as I go into battle.
But I still hope that 10 years from now, a doctor just waves a magic wand over my belly and pronounces me cancer-free. Until then, bottoms up!
Thanks for reading.
This weekend sees The Masters Tournament being hosted once again at the Augusta National Golf Club in Augusta, Georgia. The Masters was established in 1934, making this its 85th year.
Elizabeth and Herman Thacker have seen many of those tournaments. They have lived in their home next to Augusta since 1959.
Over the years, the Augusta national Golf Club has spent a reported $40 million (US), according to Business Insider, buying up homes next to the course, to accommodate parking. However, to date, the Thackers have resisted Augusta’s offers.
A 2019 article in Bisnow reported that Augusta National has spent $200 million over the past 20 years to purchase land surrounding the famed course. Purchases include two strip malls, and a church.
The spending spree does not seem to have had an impact on food prices at the tournament. A pimento cheese sandwich is still only $1.50, and a beer is $4.00. Take that, Rogers Centre!
On to the green jacket: all members of the Augusta National Golf Club (there are about 300 of them) get a green jacket. This was to identify them as members. In 1949, the club began awarding a jacket to tournament winners (although they don’t get a membership). The winner is allowed to take the jacket off of the club grounds, but only for one year. The green in the jacket is “Pantone 342”.
Caddies at The Masters are not so sartorially lucky. They are required to wear white coveralls and a green baseball hat. Until 1983, golfers couldn’t bring their own caddies, but had to use caddies supplied by Augusta National. The coveralls each have a number on the front. The defending champion gets #1; other numbers are based on the order that the caddies check in to the tournament.
Have a great weekend.
It is not uncommon for the lawyer who drafted a testator’s will or codicil to subsequently be retained by the Estate Trustees after the testator’s death to assist with the administration of the estate. The rationale behind the drafting lawyer being retained to assist with the administration of the estate appears fairly self-evident, for as the drafting lawyer likely has an intimate knowledge of the testator’s estate plan and assets they may be in a better position than most to assist with the administration of the estate.
While retaining the drafting lawyer to assist with the administration of the estate is fairly uncontroversial in most situations, circumstances could become more complicated if there has been a challenge to the validity of the testamentary document prepared by the drafting lawyer. If a proceeding has been commenced challenging the validity of the testamentary document, there is an extremely high likelihood that the drafting lawyer’s notes and records will be produced as evidence, and that the drafting lawyer will be called as a non-party witness as part of the discovery process. If the matter should proceed all the way to trial, there is also an extremely high likelihood that the drafting lawyer would be called as a witness at trial. As the drafting lawyer would personally have a role to play in any court process challenging the validity of the will, questions emerge regarding whether it would be proper for the drafting lawyer to continue to represent any party in the will challenge, or would doing so place the drafting lawyer in a conflict of interest?
Rule 3.4-1 of the Law Society of Ontario’s Rules of Professional Conduct provides that a lawyer shall not act or continue to act where there is a conflict of interest. In the case of a drafting lawyer representing a party in a will challenge for a will that they prepared, an argument could be raised that the drafting lawyer is in an inherent position of conflict, as the drafting lawyer may be unable to look out for the best interests of their client while at the same time looking out for their own interests when being called as a witness or producing their file. There is also the potentially awkward situation of the drafting lawyer having to call themselves as a witness, and the associated logistical quagmire of how the lawyer would put questions to themselves.
The issue of whether a drafting lawyer would be in a conflict of interest in representing a party in a will challenge was dealt with in Dale v. Prentice, 2015 ONSC 1611. In such a decision, the party challenging the validity of the will brought a motion to remove the drafting lawyer as the lawyer of record for the propounder of the will, alleging they were in a conflict of interest. The court ultimately agreed that the drafting lawyer was in a conflict of interest, and ordered that the drafting lawyer be removed as the lawyer of record. In coming to such a conclusion, the court states:
“There is a significant likelihood of a real conflict arising. Counsel for the estate is propounding a Will prepared by his office. The preparation and execution of Wills are legal services, reserved to those who are properly licensed to practise law. Counsel’s ability to objectively and independently assess the evidence will necessarily be affected by his interest in having his firm’s legal services found to have been properly provided.” [emphasis added]
Decisions such as Dale v. Prentice suggest that a lawyer may be unable to represent any party in a will challenge for a will that was prepared by their office as they may be in a conflict of interest. Should the circumstance arise where the drafting lawyer is retained to assist with the administration of the estate, and subsequent to being retained someone challenges the validity of the Will, it may be in the best interest of all parties for the drafting lawyer to indicate that they are no longer able to act in the matter due to the potential conflict, and suggest to their clients that they retain a new lawyer to represent them in the will challenge.
Thank you for reading.
Talk to someone who lives in Europe or travels there for extended periods. Ask them what they pay for their phone plan. You’ll be shocked and disheartened.
The costs are a fraction of what they are in Canada. In February, Global News compared the costs of phone plans across Canada, and also summarized (in the chart below) Canadian government research comparing wireless costs in Canada with those in other parts of the world. It’s clear that wireless costs in Canada are among the highest in the world.
You can read the entire article here.
Why so high
There are many reasons given for the high wireless prices in Canada. Most are a variation of “the high cost of building infrastructure in a large country with a small population” and “lack of competition.”
No one has a definitive answer, but the lack of competition angle certainly makes some intuitive sense. There are only three major carriers (Bell, Rogers, and Telus) and they own most of the discount brands. Even with a discount brand, the savings are underwhelming. Compare that to Europe, where competition is fierce and low prices are the norm.
Cut your costs
The fact that the three major carriers all have discount brands suggests that there is room to haggle in terms of the price you pay. In most cases, if you tell the carrier that you are price shopping and simply ask them for a lower price, they’ll provide a discount. It may be for a set period of time, but it will be less.
Of course, calling the carrier and haggling is time-consuming and, for many people, uncomfortable. That’s why services have popped up that will do the haggling for you, in exchange for a cut of your savings.
For example, MyBillsAreHigh specializes in reducing the monthly costs of wireless, internet, landline and cable services for business and individual customers. You can check them out here.
A company like this can save you tens of dollars a month, which, when multiplied over a lifetime, can result in total savings of thousands of dollars. Imagine you could have this much extra to pass on through your estate. And that is just the savings for one bill! Multiple that by the number of cellular bills you pay for your family members and your internet, landline and cable services. Depending on how many services you subscribe to, you could save a significant amount over your lifetime. Those kinds of savings could make a drastic difference in the type of estate you pass on and alter the lives of your estate’s beneficiaries. So with services that can easily provide us with such savings over the course of our lifetimes, we should all be exploring these options.
I haven’t myself tried this service yet, but I’ve seen it featured in the news and on shows like CBC Marketplace. I have to admit, I’m tempted – and it wouldn’t take much to get me to act.
Thanks for reading … have a great day!
Estate litigation can be costly both financially and emotionally. As a result, there is often a strong incentive for parties to try to reach a negotiated settlement. Although entering into a settlement which resolves the estate litigation may appear straightforward from the outside, it may become more complicated if all potential financially interested parties are not signatories to the settlement. It is not uncommon in estate litigation for all beneficiaries of the estate to not actively participate in the litigation, leaving it to people such as the Estate Trustee or the other beneficiaries to defend a claim. As a settlement is in effect a contract between parties, if a settlement is reached which affects the interests of a non-signatory to the settlement can such a settlement bind the interests of the non-signatory?
I have previously blogged about section 48(2) of the Trustee Act, and an Estate Trustee’s ability to settle claims on behalf of the estate which can bind the interests of the beneficiaries. While section 48(2) would allow the Estate Trustee to bind the interests of all beneficiaries to the settlement, the Estate Trustee does so at their own potential liability, as it is possible that one or more of the beneficiaries may later challenge the decision of the Estate Trustee to enter into the settlement, potentially seeking damages against the Estate Trustee if they are of the position that the settlement was not reasonable or in the best interest of the estate. As a result of such a risk, it is not uncommon for an Estate Trustee to be hesitant to enter into a settlement on behalf of the estate in contentious situations, not wanting to potentially expose themselves to personal liability if one or more of the beneficiaries should later object to the terms of the settlement. If an Estate Trustee is hesitant to enter into a settlement on behalf of all beneficiaries, but all actively participating parties are otherwise in agreement with the settlement, is there a way to bind the interests of non-participating parties to the settlement?
The Rules of Civil Procedure provide the court with the ability to “approve” a settlement on behalf of parties who are not signatories under certain limited circumstances. This is done in accordance with rule 7.08 of the Rules of Civil Procedure, which allows the court to approve a settlement on behalf of a party who themselves cannot consent to the settlement on account of being under a legal disability (i.e. a minor). Perhaps importantly however, the court only has the authority under rule 7.08 to “approve” a settlement on behalf of a party under a legal disability, and rule 7.08 is not available in circumstances where the non-signatory is fully capable.
The Rules of Civil Procedure do not otherwise appear to provide any mechanism by which a settlement can be approved on behalf of a party who is not under a legal disability. As a result, if the non-signatory who you are you attempting to bind to the settlement is not under a legal disability, the court likely does not have the authority to “approve” the settlement on their behalf under the Rules of Civil Procedure.
Although the court likely does not have the ability to “approve” a settlement on behalf of an individual who is not under a legal disability in accordance with the Rules of Civil Procedure, this does not necessarily mean that there are no other ways to potentially bind the individual to a settlement. One potential solution may be to seek an Order “in accordance” with the terms of the settlement on notice to all interested parties. Should the court issue such an Order, which in effect repeats the terms of the settlement but as an Order of the court, the non-signatories would arguably then be bound to the terms of the settlement as it would now be in the form of an Order of the court.
Thank you for reading.
Nova Scotia is proposing legislation that will make it the first jurisdiction in North America to adopt “presumed consent” around organ donation.
Under the Human Organ and Tissue Donation Act, all people in Nova Scotia will be presumed to agree to organ donation upon their death, unless they opt out. The Act does not apply to those under 19, or those without decision-making capacity. In those cases, a parent, guardian or alternate decision maker may consent on their behalf.
The Act will not be proclaimed immediately: it is to take effect in 12 to 18 months, so as to allow for public education and support for health care workers.
Under previous Nova Scotia legislation, the right of a family member to veto an organ donation decision made by a deceased was removed. See our blog on the topic, here.
Several European countries already have presumed consent laws for organ donation.
In Ontario, the current system is an “opt-in” system, rather than an “opt-out” system. Under the Trillium Gift of Life Act, consent must be given prior to the removal of organs after death. The person must be at least 16 years of age. In addition to the person, other persons are entitled to consent on the person’s behalf. These include,
- a spouse, either married or common-law;
- if there is no spouse or the spouse is not readily available, the person’s children;
- if there are no children, or if none are readily available, either of the person’s parents;
- if there are no parents, or none are readily available, any of the person’s siblings;
- if there are no siblings, or none are readily available, any of the person’s next of kin;
- if there are no next of kin, or none are readily available, the person lawfully in possession of the body, other than the administrative head of the hospital, where the person dies in a hospital. Further, the coroner, Public Guardian and Trustee, embalmer or funeral director are not authorized to consent.
Consent cannot be given if the person has reason to believe that the person who died or whose death is imminent would have objected.
Organ donation has helped so many. Please consider opting in to Ontario’s organ donation program.
Have a great weekend.
The popularity of cryptocurrencies has heightened the world’s attention on the versatility of blockchain technology. An interesting development is the application of a blockchain solution for estate planning of crypto assets.
Generally speaking, a blockchain is a shared, real-time ledger of any type of information that can be recorded ranging from financial transactions to ownership of real property. Blockchain technology allows for blocks of information to be stored in a chain on a distributed peer-to-peer network.
The traditional method of estate planning, as we know it, involves hiring a lawyer to prepare a will, which appoints the executor(s) and lists the beneficiaries. When the testator passes away it is the responsibility of the executor to administer the estate in accordance with the will. This traditional method has created uncertainty for testators who own Bitcoin or other cryptocurrency and intend for their beneficiaries to receive them.
It is estimated that millions of Bitcoins have been lost as a result of testators not adequately factoring this type of asset into their estate plan. For testators that have considered their crypto assets, concerns still remain as to whether the executor has the technological ability to access and distribute a cryptocurrency holding.
One possible way for the testator to address this uncertainty is to author a plan with detailed instructions and provide the private key to the executor(s).
A start-up company in the United States has fostered a novel approach to this issue. The company’s product offering uses a blockchain-registered will also known as a “crypto-will” to enable digital assets to be transferred automatically. The idea behind the product is that once a testator’s death record appears in the Death Master File, a computer database of death records made available by the United States Social Security Office, the crypto-will is then activated and executes the wishes of the testator. This potential solution eliminates the need for an executor to administer this portion of an individual’s estate.
As the crypto-will is still very much in the development stage, many questions still remain. It will be interesting to discover how the concept of a crypto-will evolves in the near future.
Thank you for reading,
Ian M. Hull
The “doctrine of facts of independent significance” is a doctrine that can assist in resolving potential uncertainty in a will.
For example, a bequest of “my car to my partner at the time of my death” may be void for uncertainty. However, certainty can be achieved by reference to a fact of independent significance: that is, a fact that is independent of simple testamentary significance, such as the fact of who the testator’s partner was at the time of death. The fact of the make and model of the testator’s care is also a fact of “independent significance”.
The doctrine is illustrated in the 1837 decision of Stubbs v. Sargon (1837) 2 Keen 255, 48 E.R. 626. There, the testatrix directed that certain of her property be divided “amongst my partners who shall be in co-partnership with me at the time of my death or to whom I may have disposed of my said business”. Prior to her death, the testatrix sold her business to certain persons. An action was brought to challenge the gift in the will. It was argued that the gift was “imperfect”, as the testatrix did not designate the beneficiaries, leaving them to be constituted afterwards, with none of the solemnities associated with making a will.
The court disagreed. The court drew an analogy to a bequest to a testator’s children. Even though the testator may not have children at the time of making the will, the gift will be upheld.
“The point is that though a non-testamentary act may affect the disposition of property passing through a will, if it can be said that the act has a non-testamentary significance, that is, a significance which is not exclusively referable to the passing of property under the will, then the non-testamentary act is effective to pass such property.”
Thus, in the example above, children are children regardless of what is stated in the will. Their status as children is of independent significance.
The doctrine is of limited application. It will not be extended to validate a “pour-over” clause in a will that makes a bequest to an amendable, revocable inter vivos trust. As noted in Osterhoff on Wills, 8th ed., such trusts do not have a sufficient “independent significance”, and the “testator is purporting to make a future unattested codicil to the will”.
Thanks for reading.
 Quinn Estate v. Ryland, 2019 BCCA 91, para. 25, citing Professor Litman, “Pour-Over Wills: Their Relationship to the Doctrine of ‘Incorporation by Reference’ and the Doctrine of ‘Facts of Independent Significance’”, (1979) 4 E.T.R. 48.
 Quinn Estate, supra, para. 28