Category: Estate & Trust

25 Feb

Handwritten Wills/Codicils – Yay or Nay – Larry King’s Estate, as the Latest Example

Kira Domratchev Estate & Trust, Estate Litigation, In the News, Litigation, Wills Tags: , , , , , , , 0 Comments

Handwritten Wills/Codicils are certainly quite rare, particularly for people with means. In certain circumstances, and particularly where the testator had made a pre-existing Will, the presence of a subsequent handwritten Will or Codicil can suggest the presence of suspicious circumstances.

As Paul Trudelle blogged last week, Larry King apparently executed a secret handwritten codicil in 2019 that divided his roughly $2 million estate amongst his five children, to the exclusion of his wife, Shawn King. Mrs. King apparently intends to challenge the validity of the 2019 codicil.

In Ontario, an amendment to a Will is referred to as a “codicil” and it is considered to be a Will, for the purposes of the Succession Law Reform Act. A handwritten Will, in Ontario, is referred to as a “Holograph Will” and the only requirement is that it be made wholly by the testator’s own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. The fact that a Holograph Will is usually made without witnesses will often cause litigation, particularly if there are suspicious circumstances surrounding its execution and/or discord in the family of the deceased.

If Mr. and Mrs. King resided in Ontario, Mrs. King could pursue various claims in challenging the validity of the 2019 codicil (subject to the available evidence), including:

  • Lack of requisite testamentary capacity on Mr. King’s part;
  • Mr. King being subject to undue influence from any or all of his children (or other third parties);
  • Presence of suspicious circumstances in the execution of the codicil; and
  • Presence of fraud in the execution of the document (which is pleaded quite rarely, as there are serious costs consequences for those that make such an allegation but are unable to prove it).

It will certainly be interesting to see how this matter unfolds, particularly taking into account that $2 million is not a significant amount when the costs of litigation are taken into account.

Interestingly, some sources suggest that his Estate is actually worth $50 million, which sounds a lot more accurate!

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

When to Make a Codicil

Alterations to a Will – When are they valid?

Back to Basics: Is This Testamentary?

23 Feb

Ontario Raises Small Estate Limit to $150,000.00 – Now What?

Kira Domratchev Estate & Trust, Executors and Trustees, News & Events Tags: , , , , , 0 Comments

As Ian Hull and Daniel Enright of our office blogged last week, as of April 1, 2021, small estates in Ontario will be defined as those worth $150,000.00, instead of the $50,000.00 figure we are all used to.

The Ontario Attorney General, Doug Downey, advised that the process of applying to manage an estate in Ontario was the same, whether it is worth $10,000.00 or $10 million, which often deters people from claiming smaller estates.

As a result of this change, more estates will be able to access a simplified probate process, though the amount of probate fees payable will not change.

Although these changes are welcome, some consider that there are still a number of other issues outstanding, such as:

  • Due to real estate values, estates in Toronto could be considered small, whereas that would not be the case in other parts of the province (e.g. a $500,000.00 estate in Toronto could be considered small); and
  • The probate process itself could be simplified, as many financial institutions take the position that assets cannot be managed until such time as probate is obtained (which in turn can often cost an estate, as asset values fluctuate).

A recent article discussing the above-noted points can be found here.

It will certainly be interesting to see if the new changes will make a difference, and whether more changes are coming, in light of the concerns expressed by various members of the legal profession.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Simplified Procedures for Small Estates Project

A Simplified Procedure on the way for Modest Estates?

Fare Thee Well, Fax Machine! An Overview of Changes to the Rules of Civil Procedure

09 Feb

Hull on Estates #606 – The Unorthodox Expansion of Pecore

76admin Estate & Trust, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Podcasts Tags: , 0 Comments

This week on Hull on Estates, Stuart Clark and Jennifer Philpott discuss the unorthodox use of Pecore v. Pecore, 2007 SCC 17, in the recent decisions PGT v. Cherneyko, 2021 ONSC 107, and Calmusky v. Calmusky, 2020 ONSC 1506.

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 Jennifer Philpott

28 Jan

New Service Options for Probate Applications

Nick Esterbauer Estate & Trust, Executors and Trustees, Wills Tags: , , , , , , , , 0 Comments

In recent months, an Ontario Superior Court of Justice province-wide Notice to the Profession has permitted the filing of applications for a Certificate of Appointment of Estate Trustee with a Will or a Certificate of Appointment of Estate Trustee Without a Will (“probate applications”) by email.  Since then, the Rules of Civil Procedure were updated, effective January 1, 2021 to permit for the service of most court materials by email (among other updates).

Most recently, as of January 8, 2021, the Rules of Civil Procedure were further updated to provide for the options of serving notice of probate applications by email, courier, or personal service.  Amended sub-rules 74.04(7) and 74.05(5) now read as follows:

Notice under this rule shall be served on all persons, including charities, the Children’s Lawyer and the Public Guardian and Trustee, and, unless the court specifies another method of service, may be served by,

(a) personal service;

(b) e-mail, to the last e-mail address for service provided by the person or, if no such e-mail address has been provided, to the person’s last known e-mail address; or

(c) mail or courier, to the person’s last known address.

Previously, the Rules of Civil Procedure required the Notice of Application in respect of a probate application to be served by regular lettermail.

Forms 74.06 and 74.16 (Affidavits of Service in respect of probate applications) have also now been updated to refer to these new manners of service of the Notice of Application in respect of a probate application.  The revised forms are available here.

This further development in the modernization of estates law procedures is welcome and can be expected to better enable lawyers to assist clients in serving and filing probate applications more efficiently while working remotely during the pandemic and beyond.

Thank you for reading.

Nick Esterbauer

26 Jan

Hull on Estates #605 – Obligations of Attorneys

76admin Estate & Trust, Estate Planning, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Podcasts Tags: , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Sanaya Mistry discuss the fiduciary duty and obligations of attorneys for property and the recent decision in Public Guardian and Trustee v. Cherneyko et al.2021 ONSC 107.

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 Natalia Angelini

Click here for more information on Sanaya Mistry

25 Jan

Medication and Mental Capacity

Nick Esterbauer Capacity, Estate & Trust, Health / Medical Tags: , , , , 0 Comments

As estates practitioners know well, the medication that an individual takes could reflect underlying conditions that affect mental capacity.  High doses of pain medications or other medication prescribed to treat serious physical ailments may also impact a person’s cognition.

A recent article on Considerable highlights the impact that certain common medications may have on mental capacity.  An estimated 25% of seniors take “anticholinergic” drugs to treat a variety of common issues, including allergies, insomnia, and asthma.  These medications are known to target acetylcholine, a chemical messenger that plays an important role in concentration, cognition, and memory.  Some drugs (including over-the-counter medications as well as those for which a prescription is required) impact acetylcholine levels more than others and, when they are taken together, can have a cumulative effect.  As a result, high doses of anticholinergic drugs, which are often believed to have only inconsequential side effects, can interfere with brain messaging and result in symptoms consistent with dementia.

The article refers to a patient whose score on a Mini-Mental Status Examination increasing from 11 to 28 out of 30 after a readjustment of her medication, which included common antihistamines and medication for mood and gastrointestinal issues.  Further research is being conducted on the short-term and long-term effects of anticholinergic use, as there is concern that prolonged use may cause irreversible cognitive decline.

As our readers know, due to the nature of capacity standards and importance of reviewing capacity on a case-by-case basis at the time of the relevant decision or instructions, it may be worthwhile to consider whether medication, even that commonly prescribed to seniors, may be a contributing factor.

Thank you for reading.

Nick Esterbauer

 

Other blog entries that may be of interest:

12 Jan

What’s the Update on the Calmusky Case?

Natalia R. Angelini Estate & Trust, Uncategorized Tags: , , , , 0 Comments

I previously blogged about the Calmusky v. Calmusky decision here, in which decision the court concluded that resulting trust presumptions apply to the beneficiary designation under a Registered Income Fund (RIF). As such, the onus was put on the named beneficiary of the RIF to rebut the presumption that he was holding the RIF in trust for his late father’s estate. The decision was not appealed.

The Ontario Bar Association (OBA), and primarily the OBA’s Trusts and Estates section, has considered the impacts of the case and has delivered a Submission to the Attorney General of Ontario and Minister of Finance with proposed remedies.

The potential effects cited by the OBA are worrying, and include that (i) it may compel financial advisors to provide what amounts to legal advice when such designations are being made, (ii) it may increase litigation where the named beneficiaries of plans, funds and policies are not the same residuary beneficiaries of an estate, (iii) it may create uncertainty in contracts (e.g. cohabitation and/or separation agreements) that use beneficiary designations as a way to secure support payments, and (iv) it may defeat the testamentary intentions of Ontarians who previously made their beneficiary designations and cannot make new ones.

The OBA Submission proposes legislative amendments with retroactive effect to remedy the issue. Such proposed amendments are to add a subsection to each of the Succession Law Reform Act (s. 51) and Insurance Act (s. 190) clarifying that when a designation is made, no presumption of resulting trust in favour of the estate is created.

We will provide an update once we know more.

Thanks for reading and have a great day,

Natalia R. Angelini

22 Dec

Hull on Estates #604 – Use of Reproductive Material After Death: Written Consent Required

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

This week on Hull on Estates, Jonathon Kappy and Sydney Osmar discuss a recent decision arising out of the British Columbia Court of Appeal which provides a definitive answer on when reproductive material may be used posthumously for the purposes of creating an embryo.

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 Jonathon Kappy

Click here for more information on Sydney Osmar

22 Dec

Virtual Signing of Wills and Powers of Attorney in Ontario Extended to January 20, 2021

Sanaya Mistry Elder Law, Estate & Trust, Power of Attorney, Wills Tags: , , 2 Comments

In July, my colleague Paul Trudelle discussed the Virtual Signing of Wills, noting that in response to the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney.

On December 10, 2020, pursuant to Ontario Regulation  458/20: Extensions of Orders under the Reopening Ontario (A Flexible Response to COVID-19) Act, virtual signing of Wills and Powers of Attorney have been extended until January 20, 2021 in Ontario.

Ontario Regulation 129/20: Signatures in Wills and Powers of Attorney among other things, provides the following:

1. The requirement for a testator or witness to be present in each other’s presence for the making of a Will (or Power of Attorney) may be satisfied by means of audio-visual communication technology, with certain restrictions.

2. “Audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.

 

3. At least one person who is providing services as a witness must be a licensee within the meaning of the Law Society Act at the time of the execution of the Will (or Power of Attorney).

4. The signatures or subscriptions may be made by signing or subscribing complete, identical copies of the Will (or Power of Attorney) in counterpart, which together shall constitute the Will (or Power of Attorney).

5. For this purpose, copies of a Will (or Power of Attorney) will be considered identical even if there are minor, non-substantive differences in format or layout between the copies.

Thank you for reading.

Sanaya Mistry

 

01 Dec

Fundamentals of Estate Planning: e-State Planner launches the eState Academy

Sydney Osmar Estate & Trust, Estate Planning, Wills Tags: 0 Comments

Jordan Atin and e-State Planner are excited to announce the launch of the eState Academy – a free online estate planning education site for lawyers.

The goal of the Academy is to provide a space for learning and collaboration between lawyers where not only substantive legal issues are discussed, but practice tips. The course will provide its attendees with basic planning frameworks, as well as practical advice regarding client management.

New courses will be added throughout the year so that subscribers can both refresh their understanding of various estate planning topics, but also keep up with recent developments in the law.

The Academy offers a series of short video lessons, presentations and quizzes.

For more information on the Academy please see here. To enrol, please see here. Finally, to learn more about the e-State Planner software, please see here.

Thanks for reading and happy learning!

Sydney Osmar

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