Category: Estate Planning
The book “The Beautiful Ones” was released last week in Canada. Part memoir (until his teenage years) and part biography, the book provides some insights into the life of one of the most influential musicians of our time. “Prince” Rogers Nelson, a multi-talented singer-songwriter died on April 21, 2016 at the age of 57 from an accidental fentanyl overdose at his estate outside Minneapolis. He died without a will.
The Minnesota Star Tribune reported about two weeks later, on May 8, 2016 that: “Suddenly, wills and estates are a topic everyone wants to learn about.” And “They are talking about it at the family barbecue, the Rotary Club, and the Anoka Area Chamber of Commerce”.
According to several surveys, approximately 65% of Canadians do not have an “up to date” will. “Make a Will Month” encourages Canadians to make or update their wills. Doing so can save a lot of expense, delay, and conflict in the future. A proper will and estate plan means reducing or eliminating problems that arise when a person dies intestate (without a valid will). It has been reported that three years after his death Prince’s estate is still not distributed. Lawyers for his sister and half-siblings are squabbling. Claims by some alleged descendants have been dismissed. According to some estimates the estate is worth more than $300 million USD.
All kinds of people, including famous musicians, die without having made a valid will. Some who did not get around to making a will include: Jimi Hendrix, Bob Marley, Kurt Cobain, Salvatore “Sonny” Bono, Duke Ellington, Barry White, George Gershwin, and Amy Winehouse.
Why wait? It is Make a Will Month! Please consider making a will. Thanks!
“Your Will is a Sacred Trust. It should be made when you are in the prime of life and better able to give it the consideration it deserves.”
From an advertisement in the National Post, Toronto Newspaper, by the Mercantile Trust Company on November 8, 1919.
One hundred years have passed since that advertisement and there have been many changes in the law since then, changes in the use of technology in making wills and changes in society. But, it does not appear that the advertising and marketing of wills has evolved much over the last hundred years. There is little advertising visible today and it does not appear to be effective. Recent surveys have shown that approximately half of all Canadians do not have a will. An Angus Reid Institute report indicates that the majority of Canadians today do not have a will, and only 35% say they have a will that is “up to date”. The main reason cited for not having a will was 25% who said, “Too young to worry about it”. Interestingly, only 18% responded that they thought “It’s too expensive to get a will written” – with this number being only 6% among people with a household income of more than $100K.
In a time when individuals are often spending what appears to be incredible sums of money on material things, and on sports events, concerts, stage productions, and other entertainment, one has to wonder if marketing of the legal service of “getting a will written” has somehow missed the mark when 65% of Canadians say they do not have a will that is up to date.
November is Make a Will Month, which is an opportunity for Ontario Bar Association members to help the public understand the importance of having a will and having it done by a lawyer. Please consider making a will in “Make a Will Month” and instead of putting it off – why not “do it now”. Make a Will Month will see many free legal information sessions presented by volunteers at places like libraries and community centers across Ontario throughout November. For more information, you can contact a lawyer or visit the Ontario Bar Association website.
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The monetary jurisdiction of Ontario’s Small Claims Court is set to increase on January 1, 2020. The jurisdiction of the Court will increase from $25,000 to $35,000.
The current limit of $25,000 was in place since 2010. Prior to that, the limit was $10,000.
In a press release from the Ministry of the Attorney General, the change is said to “make it faster, easier and more affordable for people and businesses to resolve their disputes in front of a judge.”
Claims over $35,000 would need to be brought in the Superior Court of Justice. As noted by the Ministry of the Attorney General, claims in the Superior Court of Justice can take years to resolve, and can involve expensive legal representation. Claims in the Small Claims court, however, can be resolved in less than a year, and litigants are not required to hire lawyers or other legal help.
The Ministry also stated that the change should have the effect of reducing wait times in the Superior Court of Justice, as many claims that would otherwise have been brought in the Superior Court of Justice could now be brought in the Small Claims Court.
Another change is that the minimum amount of a claim that may be appealed to the Divisional Court is increased from $2,500 to $3,500.
As to transition, litigants who started a claim in the Superior Court of Justice for an amount between $25,000 and $35,000 can move to have their claim transferred to the Small Claims Court.
There are costs consequences if a proceeding is brought in the wrong court. Under Rule 57.05 of the Rules of Civil Procedure, if a plaintiff recovers an amount within the jurisdiction of the Small Claims Court, the court may order that the Plaintiff shall not recover any costs. If a Plaintiff recovers default judgment that is within the monetary jurisdiction of the Small Claims Court, costs shall be assessed in accordance with the Small Claims Court’s tariff.
Costs in the Small Claims Court are limited under its rules, and are subject to a limit under the Courts of Justice Act, s. 29, to 15% of the amount of claimed or the property sought to be recovered, subject to the court’s right to award higher costs to penalize a party or the party’s representative for unreasonable behavior.
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In the spirit of the season, we take this opportunity to explore potential estates issues with respect to age-old Halloween stories, supposing they occurred in Ontario.
Spawned from historical and mythic accounts of Vlad the Impaler and reimagined in Bram Stoker’s classic, Dracula is the prototypical vampire – debonair and inconspicuous gentleman by day, bloodthirsty and puissant ghoul by night – a personification of evil. With such notoriety, it is unsurprising that his estate is fabulous. Once Dracula is deceased (from a silver bullet), his estate trustee could liquefy all the treasures he has accumulated through the ages. And there is no doubt that his castle, with its grand halls, ornate architecture, and scenic view of the Transylvanian mountains, would be worth a fortune. But what of the beneficiaries? If Dracula has a will, surely it would have some foul purpose that would be voided on public policy grounds. Applying the laws of intestacy, then, we would look for Dracula’s spouse and next of kin, but being as his life goals were far from romantic and familial, it is most probable “that the property becomes the property of the Crown, and the Escheats Act, 2015 applies” (Succession Law Reform Act, s. 47(7)).
Mary Shelley’s Frankenstein illustrates how social alienation can lead to monstrosity (a subject explored more subtly than in Joker), but in film and popular culture it is best remembered as a warning against science going too far (i.e., the wakening of an uncontrollable force, akin to the Jewish golem and symbolic of nuclear warfare). Now we must imagine that Dr. Frankenstein’s estate would be less than the Mummy’s (what with all the riches in an Egyptian crypt), but much as Dr. Frankenstein might port the shabby dress of a man in his station, we should not doubt that a mad scientist can accumulate valuable assets. Since the wretch probably does not have legal personhood, however, any bequest from Dr. Frankenstein to his creation would probably have to be in the form of a charitable donation (similar to the woman who gave everything to dogs, as we blogged about here). But then we must wonder if the wretch were exercising undue influence on Dr. Frankenstein … There is also the question of claimants against the estate, for the wretch’s many victims would be expected to sue.
Hansel and Gretel
The Brothers Grimm memorialized this cautionary tale about two children who get lost in the woods and end up the captives of an evil witch. In the aftermath of the children outsmarting and destroying their captor, the question arises: what will happen to her gingerbread house and other candy assets? We may infer that her will would be invalid, for a cannibalistic witch cannot be said to be operating with a sound enough mind to meet the threshold for testamentary capacity. In any case, the children could claim dependant support according to section 58(1) of the Succession Law Reform Act, for they were being fed (especially Hansel) large quantities of candy and were provided with shelter. And if estate litigation were to ensue, the Ontario Children’s Lawyer would likely have to get involved: Hansel and Gretel, precocious as they may be, are still children.
Suzana Popovic-Montag and Devin McMurtry
Judges are sworn to decipher, apply, and uphold the law, an exercise that takes great care and sense considering the ambiguity of statute, the discordant doctrines of interpretation, and the prevalence of emotional tinderboxes in litigation. Perhaps more challenging, however, is the judge’s task of navigating through brambles of facts.
In the Newfoundland and Labrador Supreme Court decision of O’Dea Estate (Re),  N.L.S.C. 178, Orsborn J. was imposed with the burden of sorting out a conflict between Michael and Shannon, who were named co-executors and whose acrimonious sibling relations are reminiscent of a previous blog. Contrary to the testator father’s wishes, in the two-and-a-half years since his death, neither sibling was appointed executor; instead, litigation between the two raged, with each accusing the other of fraudulent behaviour. In competing applications, Michael sought the appointment of the Public Trustee, whereas Shannon applied to have herself appointed sole executrix.
Justice Orsborn decided as follows: “By asking to have the Public Trustee appointed, Michael has effectively renounced his appointment pursuant to the will.”
A mere proposed solution was construed as a renunciation. Michael’s position was undermined by his willingness to see the estate depleted (by hiring the Public Trustee, a pricy endeavour) combined with his disinclination to assume the role of co-executor.
Other factors were present in this decision. Orsborn J. was reluctant to accede to Michael’s request for financial reasons, for the estate was not large and the Public Trustee could be expected to take a significant chunk out of what remained. It also mattered to him that the testator’s intention to have Michael and Shannon administer the estate be at least half-honoured. Additionally, the judge ascribed significance to the fact that the other estate beneficiaries, who were also children of the deceased testator, preferred Shannon’s claim.
O’Dea Estate is another case in which the court has emphasized its commitment to limiting costs with small estates, but more importantly, it suggests the court will draw an adverse inference when litigants seek to hand off their responsibilities to third parties.
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David Morgan Smith and Devin McMurtry
Do you smell that? Good!
The sense of smell, or lack of it, can be an indicator of the future onset of dementia.
In a study of 3,000 adults, researchers at the University of Chicago Medical Center found that those who could not identify four out of five common odours were twice as likely to develop dementia within five years.
The study, “Olfactory Dysfunction Predicts Subsequent Dementia in Older US Adults”, was published in September 2017 in the Journal of the American Geriatrics Society. The scents used, in increasing difficulty of recognition, were peppermint, fish, orange, rose and leather. The study found that 78.1% of those studied had a normal sense of smell, and could identify four out of the five scents. 18.7% could identify only three of the scents, and 3.2% could only identify one or two of the scents.
After five years, almost all of those who could only identify one or less scents were diagnosed with dementia.
According to the study, the sense of smell may signal a key mechanism that also underlies human cognition. The olfactory system has stem cells which regenerate, and “a decrease in the brain’s ability to smell may signal a decrease in the brain’s ability to rebuild key components that are declining with age, leading to the pathological changes of many different dementias.”
Because the smell test is so easy to administer, it is believed that the test could lead to an earlier determination of the possible onset of dementia.
Business Insider recently reported that 2.1 billion people access at least one of the Facebook, Messenger, Whatsapp or Instagram apps every day. That’s a little less than a third of the world’s population.
These platforms allow us to share various aspects of our lives. Some of us use them to document everything. But what happens to these accounts when a user passes away? Do their accounts remain on these platforms forever or can they be removed? Let’s take a look at four of the biggest social network platforms to see what their policies say.
Facebook users have the option of having their account permanently deleted or appointing a legacy contact to look after their “memorialized account.” A legacy contact is someone who is chosen to oversee an account if it is memorialized. The legacy contact must be 19 years or older. They can accept friend requests on the deceased’s behalf, pin tribute posts and change the account’s profile picture and cover photo.
Key features of memorialized accounts include the following:
- The word “Remembering” will appear next to the person’s name on their profile
- No one can log into the account
- The account will not appear in public spaces such as friend suggestions
- Content that was shared on Facebook while the deceased was alive will remain visible to the audience it was initially shared with
- Depending of the deceased’s privacy settings, friends of the deceased can share memories on the account’s timeline
Similarly to Facebook, Instagram accounts can also be permanently deleted or memorialized upon request. To remove the account, the user must provide proof that they are an immediate family member of the deceased. Proof may include the deceased’s birth or death certificate or proof of authority that the individual is the lawful representative of the deceased person or their estate. In order to memorialize an account, proof of death such as a link to an obituary or news article is required. A memorialized Instagram account will not appear differently from an account that has not been memorialized.
Instagram’s memorialized accounts have the following key features:
- No one can log into the account
- Posts shared on the account stay on Instagram and will remain visible to the audience they were initially shared with
- Changes will not be able to be made to any of the account’s existing posts or information
Unlike Facebook, a legacy contact cannot be appointed for a memorialized Instagram account.
A colleague, classmate or loved one can request the removal of the deceased’s profile by filling out this form. The form requires several pieces of information such as the applicant’s relationship to the deceased, the link to the deceased’s obituary and the company the deceased most recently worked at.
A verified immediate family member or someone who is authorized to act on behalf of the estate can request the removal of the deceased’s account. A request requires information about the deceased, a copy of ID from the individual making the request and a copy of the deceased’s death certificate.
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Ian M. Hull and Celine Dookie
Often, matters are settled with a term requiring that the terms of the settlement be kept strictly confidential. What happens if such a term is breached?
The decision of an arbitrator in Acadia University v. Acadia University Faculty Association, 2019 CanLII 47957 (ON LA) provides an answer. There, Dr. Rick Mehta, a tenured professor, was terminated for alleged cause. The matter was settled at a voluntary mediation. Faculty counsel were present, along with Dr. Mehta’s personal counsel.
A term of the settlement provided that the settlement was “without any admission of liability or culpability by any of the parties”. Further, the parties agreed “to keep the terms of these Minutes strictly confidential except as required by law or to receive legal or financial advice.” “If asked, the parties will indicate that the matters in dispute proceeded to mediation and were resolved, and they will confine their remarks to this statement. Stated somewhat differently, it is an absolute condition of these Minutes that no term of these Minutes will be publicly disclosed.”
Under the settlement, Dr. Mehta was to receive a specific payment, said by the arbitrator to be a “relatively modest amount”.
Unfortunately for Dr. Mehta, he tweeted that he had been “vindicated”. In response to a comment from a follower stating that the follower hoped that Dr. Mehta received a “nice sum monz”, Dr. Mehta replied saying “all I will say is that I left with a big grin on my face.” He later tweeted that “I got the vindication that I was seeking. … I have left the university on my term, as opposed to the administration’s or union’s terms.”
Dr. Mehta was ordered by the arbitrator to remove the tweets. Dr. Metha responded with more tweets referring to his “severance pay”. He threatened to release the Minutes to the media unless certain conditions were met.
The arbitrator found that there was a clear breach of the Minutes. The arbitrator went on to find that by reason of the breach, the University was not required to honour the payment provision under the Minutes.
A similar result was reached in the decision of Jan Wong v. The Globe and Mail Inc., 2014 ONSC 6372. There, reporter Jan Wong reached a settlement after the termination of her employment by The Globe and Mail. The settlement contained a term that Ms. Wong would not, until August 1, 2009, “disparage The Globe and Mail or any of its current or former employees relating to any issues surrounding her employment and termination… .” The settlement further provided that the terms of the settlement were not to be disclosed. The settlement also contained a provision that if there was a breach, Ms. Wong would have an obligation to pay back the settlement funds.
Subsequently, Ms. Wong wrote a book about her relationship with The Globe and Mail. It was to be published by Doubleday. The Globe and Mail objected to the publication of the book, and Doubleday terminated its publication contract with Ms. Wong. Ms. Wong then self-published her book.
In her book, Ms. Wong did not say what she was paid as severance. However, she made various references to the payment, including:
- “I’d just been paid a pile of money to go away …”;
- “Two weeks later a big fat check landed in my account”; and
- “Even with a vastly swollen bank account …”.
The Globe and Mail argued that these references were in breach of the Minutes of Settlement. The arbitrator agreed. Ms. Wong’s application for judicial review was dismissed. Ms. Wong was ordered to repay the $209,912 in severance that was paid to her.
Bottom line: If your Minutes of Settlement contain a confidentiality clause, keep the settlement confidential!
Thank you for reading.
Disinheritance has long been a subject replete with interest. Is it a doleful mishap, a strange whim rooted in spite, a tragedy, or is it just desserts and a shield by which elderly persons can impose good behaviour on their successors? Charles Dickens was fascinated with the subject. From Great Expectations to Martin Chuzzlewit, many of his tales include fabulously wealthy testators, parasitical and destitute minor relatives, wronged rightful heirs, family bonds eroded by greed, artifice and deception – and often, in the end, a just outcome. Similar to how the poignancy of this theme stirred Dickens’ readers, aggrieved disinherited parties are often so stirred, to put it mildly, that they commence all-out legal warfare – quenching their scorn with the costly and sometimes blackened bread of estate litigation.
From the testator’s point of view, there is no foolproof method of disinheriting a child. It certainly helps if the child is not dependent, is an adult, has no basis for expecting anything, and there is a forceful, probative reason for the disinheritance (i.e. “so-and-so didn’t let me see my grandchildren”). It might be a good idea for a testator to explicitly state that he or she is disinheriting a child, lest the child later make the argument that the omission was a slip-of-the-mind rather than deliberate disinheritance. The testator may also include a clause explaining the rationale, though this can be dangerous – disinheriting someone out of racism (Spence v. B.M.O. Trust Company,  O.N.S.C. 615 at paras. 49-50).
Some drafting solicitors may suggest giving a small, nominal amount to the otherwise disinherited child – to partially appease the child, appear more moderate to a judge, or otherwise “save face”. The problem with this, however, is that as soon as someone is a beneficiary, he or she may be able to invoke beneficiary rights, such as objecting to the passing of accounts.
As for disinherited children, they may have legal recourse, such as section 58(1) of the Succession Law Reform Act, which gives the court discretion to determine if “adequate provision” has been made for a testator’s “dependants”. In Tataryn v. Tataryn Estate,  2 S.C.R. 807, the Supreme Court overturned the explicit disinheritance of a son and wife because it found that the testator failed his “moral obligation” to provide for them. If a dependant support claim leads nowhere, a disinherited child can always challenge the will, for the wellspring of arbitrary disinheritance is often incapacity or undue influence.
It is hard to lose a parent. Hard, too, is the loss of an inheritance. Keeping this in mind, testators who wish to prevent a conflagration of litigation might opt not to light the spark of disinheritance. If they feel the circumstances demand it, however, they should work with their estate planners to fortify their legal positions against the storms which might otherwise gather.
Thank you for reading,
Suzana Popovic-Montag and Devin McMurtry
Communications between a client and their lawyer are protected by solicitor-client privilege. Except in limited circumstances, only the client can waive the privilege.
Upon death, the right to waive privilege passes to the estate trustee named in the will, or appointed by the court if there is no will.
Is the right to waive privilege absolute, applying to all solicitor-client communications? According to a decision of the Supreme Court of Nova Scotia, the answer is No.
In Dumke v. Conrad, 2019 NSSC 310 (CanLII), the deceased died without a will. Her son applied for and was appointed as administrator of the deceased’s estate. He was the sole beneficiary.
Prior to the deceased’s death, the son was attorney for property for the deceased. The deceased regained capacity and brought a proceeding to declare the power of attorney in favour of the son invalid, and to compel the son to pass his accounts. That litigation was resolved.
Following the death of his mother, the son sought to obtain the lawyer’s file relating to the power of attorney litigation. The lawyer then brought an application for directions, with the question being whether the son was entitled to the litigation file.
The court held that the right to waive privilege is not absolute. The files sought must be relevant to an issue being decided or to the ability of the personal representative to administer the estate. Confidentiality “should not be interfered with except to the extent necessary and the right of the respondent to waive privilege must be interpreted restrictively.”
A deceased person could have criminal files, child protection files, divorce files, etc. If a person seeking advice from a lawyer knew that, after their death, their children would have access to those files, the free, confident, candid communication necessary between a lawyer and client would not occur. The basis of solicitor/client privilege would be eroded. As stated above in Descôteaux, the right to counsel would be imperfect if the privilege is eroded or frittered away.
The court could not find any reason why the files being sought would be relevant to the administration of the estate. Rather, it found that the files being sought were for “personal reasons not relevant to the administration of the estate”.
The court ordered that the file in relation to the power of attorney litigation not be disclosed.
Thank you for reading.