Category: Estate & Trust
In Ontario the courts have been rapidly adapting their practice and procedures in response to the COVID-19 pandemic. Beginning on July 6, 2020, the Superior and Ontario Court of Justice will now be further expanding its operations. The date is dependent on approval from the Chief Medical Officer of Ontario.
The Ministry of the Attorney General (“MAG“) has established an incremental plan to prepare courthouses to facilitate the return of full court operations in Ontario. MAG has announced that Phase One will be implemented on July 6, 2020 in a limited number of courthouses and courtrooms. Court operations will continue to expand with a targeted completion date of November 1, 2020.
I will briefly highlight some of the takeaways from MAG’s strategy for re-opening:
- Reopening of 74 courthouses and 149 courtrooms across Ontario;
- Workplace safety considerations are being implemented throughout courthouse and courtrooms including the installation of plexiglass barriers, hand sanitizer stations, and distance markers. There will also be increased screening procedures for those entering any courthouse and caps on the number of occupants in each room;
- Each courthouse will have risk assessment conducted so that the proper preventative measures can be put into place;
- Virtual hearings will continue as we gradually phase back to in-person appearances.
MAG has yet to clarify on the types of in-person court appearances that will be heard during Phase One. Since the declaration of the emergency, the Superior Court of Justice has heard many “urgent” matters, being motions, case conferences, and pre-trials. It is hoped that the types of matters that are to be heard will be expanded as a part of Phase One.
In the meantime, counsel should continue to utilize and embrace the new technologies offered by the Courts to schedule virtual hearings and integrate them into their regular practice. Rather than waiting for a complete re-opening of the Courts, lawyers should be prepared to “attend” virtual hearings in order to best serve clients and provide them with access to justice.
Thank you for reading and stay tuned!
The COVID-19 pandemic has changed the way the legal profession works at least on a temporary basis. In Ontario, lawyers are required to embrace technology to facilitate dispute resolution and to move files along. Mediations, discoveries, and Court hearings are being conducted virtually via videoconference. Today I will consider some of the benefits of remote mediation and then tips on how to master it.
- Cost – cost will inevitably be lower as it will be organized on an online platform.
- Convenience – The mediation can be arranged on short notice, as all parties can participate from their location of choice. Travel and the associated costs are no longer an issue. Participation of parties that might not have otherwise be available to participate in mediation may now be accessible.
Tips for Successful Remote Mediation:
- Ensure your client is set up with the proper technology: a computer equipped with webcam, microphone, and speakers. Lawyers cannot assume that every client has access to a computer and quick internet connection.
- Consider using a 3rd party provider such as Neesons Court Reporting & Mediation, to host the mediation. This provider can facilitate the movement of parties in and out of plenary and breakout rooms, summon the mediator, arrange a counsel-to-counsel meeting, and assist with technical issues. This will ultimately save the parties time and expense.
- Ensure your clients are aware of privacy and confidentiality within meeting rooms. Client comfort is essential for a successful mediation.
- A lack of personal interaction means that your client may not be able to warm up to a mediator, which often times is necessary for a successful mediation. An effective mediator will structure a meditation in a way to facilitate adequate confidential one-on-one communication with the parties to assist with resolving the limitations of working with a
mediator through a video link rather than in person.
- Take lots of breaks as attending virtual mediation is more tiring than in person.
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Trustees may be cautious or uncertain when administering trusts, even when the trust deed gives them unfettered discretion in carrying out their duties.
In Ontario, trustees are able to seek advice and directions from the court under section 60 of the Trustee Act and also seek advance approval of various exercises of discretion in administering a discretionary trust. The jurisdiction of the Court to approve the exercise of discretion by trustees was formally recognized in Public Trustee v. Cooper  WTLR 901, a decision of the High Court of Justice in the UK. These orders are often referred to as “Cooper orders”. However, trustees must consider when it is appropriate to involve the Court in decisions that should be made by trustees.
Justice Hart in Cooper outlines instances in which trustees can seek directions from the Court. He states that parties may seek to obtain the blessing of the Court for a “momentous decision” that they have resolved to make in the trust’s life. As long as the proposed course of action is within the proper exercise of the trustees’ powers and where there is no real doubt as to the nature of the trustees’ power, the Court may make a declaration that the trustee’s proposed exercise of power is lawful. The Courts have made it clear that they will not exercise discretionary powers on behalf trustees.
Cooper Orders have been successfully sought in Canada. In Toigo Estate (Re) 2018 BCSC 936, the Trustees of an Estate sought the Court’s declaration that their exercise of discretion was lawful. The deceased created a spousal trust which permitted the trustees uncontrolled discretion to encroach on the capital of the estate in favour of his wife. After his wife’s death, the residue of the estate was to be divided amongst the deceased’s children and grandchildren.
The wife asked the trustees for a significant encroachment. The trustees had uncontrollable discretion to make the encroachment. However, they still wanted the Court’s “opinion, advice or direction” as to whether they should proceed.
The Court held that because of the magnitude of the encroachment, the Court could provide advice on this “momentous decision”. In making the decision, the court asked the following questions:
- Does the trustee have the power under the trust instrument and the relevant law to make the “momentous decision”?
- Has the trustee formed the opinion to do so in good faith and is it desirable and proper to do so?
- Is the opinion formed by the trustee one that a reasonable trustee in its position, properly instructed, could have arrived at?
- Is the Court certain that the decision by any actual or potential conflicts of interest?
Ultimately, trustees need to consider whether it’s suitable in their circumstances to apply to the court for a stamp of approval when taking drastic or “momentous” action.
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The last will and testament of the gunman responsible for Nova Scotia’s mass shooting in April 2020 was recently made public. The gunman’s will names his common law spouse as the executor of his estate, estimated to be worth around $1.2 million. However, the gunman’s spouse has renounced her right to be executor of his estate and it is now being administered by the Public Trustee. It was also rumoured that the spouse had renounced any interest she may have had in the gunman’s sizable estate.
Whether the gunman’s partner did in fact relinquish any inheritance remains to be confirmed. However, there are a multitude of reasons why someone may choose to waive their right to an inheritance, including:
- Emotional grounds;
- Personal moral or ethical grounds;
- To avoid taking possession of an undesirable or costly asset, such as real property that requires significant repairs or maintenance;
- To avoid subjecting assets to potential creditors if the beneficiary is on the brink of bankruptcy or involved in a lawsuit; or
- To allow the asset to pass to a secondary beneficiary.
For an overview of what is required to properly disclaim an inheritance, you can read Ian Hull’s blog here.
As shown by the above list, even where a beneficiary does not plan to benefit personally from an inheritance they may still be interested in what happens to that inheritance. In such situations, the beneficiary may want to think carefully about whether disclaiming their inheritance is the best option.
It is important to note that a person can only disclaim a gift if they have not yet benefited from the assets and, once disclaimed, that person has no control over the assets. In other words, a beneficiary who renounces a gift should not have anything to do with those assets either before or after they have been disclaimed. This also means that the beneficiary should not have any say in who receives the inheritance.
If a person wants to disclaim their inheritance in order for it to pass to a secondary beneficiary, they should confirm whether the deceased’s will or intestacy laws, as applicable, provide for that outcome. If it does not, or if the person wishes to direct their inheritance to some other individual or charity, there is another option: they can accept the inheritance and give some or all of the assets to whomever they choose. Depending on the beneficiary’s particular goals and circumstances, accepting an inheritance and distributing the assets as they see fit may be preferable to disclaiming the assets.
Thanks for reading!
As many of our blog readers will know, Ian Hull, Jordan Atin and Suzana Popovic-Montag have been working hard during the pandemic to host weekly webinars in efforts to increase resource sharing and practice management tips.
I have had the opportunity to help out with this endeavour, and have attended each webinar to date. Many helpful practice tips and resources have been shared, so I thought it may be useful to provide an overview summarizing some of the main takeaways that have been touched upon to date:
Virtual and Counterpart Execution of Wills/POAs
- After swift responses from the Attorney General of Ontario, Wills and POAs can now be witnessed virtually, and, executed in counterpart for the duration of the pandemic. Of course, the Emergency Order does not set out explicitly how to do so. Therefore, Ian and Jordan have attempted to outline best practices on how to accomplish the virtual and counterpart execution of Wills and POAs. Jordan has prepared a detailed blog setting out the process he uses, providing links to helpful checklists which can be found here.
- Some further tips discussed include circulating locked versions of the documents to be executed with a unique identifier so that the solicitor can ensure everyone is working off the same document.
- While the Emergency Order has opened up the possibility for counterpart and remote execution of Wills and POAs, clients should be encouraged to re-sign their Wills and POAs when in-person meetings can resume.
Holograph Wills and the use of an Amanuensis
- Some early discussions in the webinar series, before counterpart and remote execution was a possibility, focused on the possible use of holograph wills, or the use of an amanuensis (signing a testator’s Will, on their behalf, at their direction).
- Jordan has summarized these discussions in two blogs. To learn more about the use of holograph wills, see here. To learn more about the use of an amanuensis, see here.
- An important topic that has been touched on throughout the webinar series is avoiding LawPRO claims in a COVID-19 world. While much thought has been given to the actual execution and witnessing of Wills and POAs during the pandemic, practitioners should not let their regular practice management fall to the back burner. Regardless of COVID-19, LawPRO claims continue to result from errors such as: inadequate investigation, miscommunication, errors of law and poor time management.
- Now with the increasing necessity to take Will planning instructions by phone or video conference, heightened steps need to be taken to ensure that both client and solicitor understand the client’s instructions and intent, as well as testing for things like capacity and undue influence. WEL Partners have prepared a checklist for indicators of undue influence during virtual meetings which can be found here.
Tools and Technology for Practice Management
- LawPRO has prepared a resource page which includes links to various tools, articles, checklists and other resources which can be accessed by practitioners.
- E-State Planner – one of the many ways in which E-State Planner can be used to avoid claims, regardless of COVID-19, is by providing the client with visuals. Using visual aids while taking instructions ensures that there is an understanding between client and solicitor, right from the spelling of names to the actual impact their instructions have on the distribution of the estate.
- Virtual Web Conferencing Systems – while there are many options to choose from, it is clear that the web conferencing has become a significant part of the daily practice of law, one which is likely to stay. Whether using Zoom, Webex, Microsoft Teams, Google Hangouts or any of the many other systems available, lawyers should take the opportunity now, to familiarize themselves with web conferencing. In particular, screen sharing, which has become integral to virtual meetings, mediations, hearings, examinations and so forth, is a particular skill that should be honed.
- Protecting privacy – as we have learned, it is extremely important to take all necessary precautions to protect privacy when utilizing web conferencing systems. Examples of such steps are: using passwords, using the “waiting room” or “lobby” feature so that the host can limit access to the meeting to authorized individuals, or, requiring registration.
- Recordings – another unique feature of web conferencing systems is that the recording of meetings is becoming increasingly more common. While this can be helpful for ensuring that there is a complete record of instructions and advice given, it also means that lawyers will likely be held to a higher standard (as the recording will allow for greater scrutiny).
- Inter-office communication resources – with lawyers and staff working from home, there is greater need for fostering instant communication and resource sharing inter-office. Services such as Slack can be used for both inter-office communication and file management. Slack also allows for you to add in tools and apps to assist in practice management, such as Notability, the use of check lists, work flows, and even web conferencing platforms.
- File management in a “remote world” – with the office working from home, there is a greater need for remote office software. Programs such as Clio and Monday.com are examples of such software.
Moving Matters Forward
- With courts limited to hearing only urgent matters, lawyers have had to get creative in how we can continue to move matters forward and continue to meet and exceed client expectations. As discussed in the webinar series, this has included (for cases that are appropriate) conducting examinations and mediations virtually. To learn more about the Estate Arbitration Litigation Management initiative spearheaded by Suzana, see here.
Finally, as we have had a regular and significant turn out to the weekly webinar series, I would like to remind all participants that they qualify for CPD credits for having attended the webinars. In case you missed which credits you are eligible for, please see below:
- Webinar 1 – March 27, 2020: 15 mins substantive, 15 mins professionalism
- Webinar 2- April 3, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 3 – April 11, 2020: 30 mins substantive, 30 mins professionalism
- Webinar 4 – April 17, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 5 – April 23, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 6 – April 24, 2020: 15 mins substantive, 15 mins professionalism
- Webinar 7 – May 1, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 8 – May 8, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 9 – May 15, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 10 – May 22, 2020: 45 mins substantive, 15 mins professionalism
- Webinar 11 – May 29, 2020: 45 mins substantive, 15 mins professionalism
Thanks for reading!
A recent class action proceeding against the estate of a deceased illustrates an estate’s limited liability. That is, an estate can’t be liable for more than what is left in the estate.
The case, Davidson v. Solomon (Estate), 2020 ONSC 2898, involved a class action against the estate of a deceased orthodontist. The orthodontist was alleged to have, for years prior to his retirement in 2015, “inappropriately” video recorded patients while he was providing them with dental services. 295 patients, many of whom were minors, were identified as victims.
Dr. Solomon was charged in 2017 with various offences, including voyeurism, making child pornography and possessing child pornography. He died on October 5, 2017 at the age of 69, before the criminal charges were tried. Accordingly, the criminal charges were withdrawn.
The incidents were discovered in 2017 when the Royal College of Dentists began investigating after receiving a complaint about Dr. Solomon’s services. In the course of the investigation, camcorder tapes were discovered, and Children’s Aid and the police were notified. The tapes dated from 1994 to 2014.
A class action was brought against Dr. Solomon on September 29, 2017. According to a news report, the claim sought damages of $1m, Family Law Act damages of $50,000 for each family law claimant, and $500,000 in punitive and exemplary damages. The claim was continued against Dr. Solomon’s estate after his death.
The estate denied the allegations. The allegations were never proven in court.
However, after extensive investigation, including dialogue with the estate’s lawyers, the representative plaintiff’s lawyer determined that the value of the estate was likely limited to $500,000. In light of the criminal nature of the allegations, it was determined that professional liability insurance was not likely to respond to the claim. Thus, it was concluded by the representative plaintiff that any judgment for damages would be limited to $500,000.
In light of this, a settlement was reached which saw to the estate paying a total of $425,000 for damages, administration fees, and legal costs. The court approved this settlement, noting, amongst other factors, that the estate had limited assets to satisfy any judgment. In approving the settlement, the judge hearing the approval motion stated, “Furthermore, there is a significant risk that but for this settlement, the Class Members would recover nothing, given the limited assets available to satisfy any judgment.”
Presumably, the estate plead plene administravit praetor: that the estate had limited assets. Read about this doctrine here.
Thanks for reading.
As many are aware, the Superior Court of Justice has essentially shut down operations, subject to certain narrow exceptions, in light of COVID-19.
On May 13, 2020, a Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media was published regarding “Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020”. The Notice can be read in its entirety here. Below, I discuss some of the highlights relevant to the estates list.
- The Notice specifically denotes that the Superior Court of Justice has not closed and that it continues to expand its operations virtually – in writing, or by telephone or video conference hearings. It is further highlighted, that during the suspension of regular in-court operations, lawyers and parties are expected to actively move cases forward.
- Although the requirement to gown for a Superior Court of Justice appearance is suspended, parties participating in video conferences are expected to dress in appropriate business attire and should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. In fact, some guidance from the Superior Court of Justice on the issue of technical set-up can be found here.
- On the issue of filings, the Notice indicates that factums should be hyperlinked to relevant cases (instead of filing a Brief of Authorities) and there is a very specific format of the email that is to be sent to the Court to request dates or file materials. Importantly, the size of emails has been expanded to 35MB, however, it is also noted to limit filed materials to only those necessary for the hearing (in addition to the restrictions related to the length of material, already in place).
- Although materials are being filed electronically, given the pandemic and the need to isolate, the Superior Court of Justice expects that all materials filed electronically be later filed in hard copy with the Court and the requisite filing fee be paid. That means, that it is important to keep track of all materials filed electronically, as there is a positive obligation to deliver hard copies and payment for the filing, at a later time.
- Service via email is permitted such that it is not necessary to obtain consent or a court order to serve a document by email where email service is permitted.
- Whereas, urgent matters continue being heard (subject to the Superior Court of Justice’s discretion to decline to schedule for immediate hearing any particular matter listed in the Notice), the following Toronto Commercial and Estate List matters are being heard (the Notice to Profession – Toronto, can be found here):
- Select motions;
- Select applications;
- Case management conferences;
- Pre-trial conferences; and
- Judicial settlement conferences.
Reviewing this Notice shows that court services are expanding. Certainly, one positive effect of the pandemic has been the overall embrace of various technologies by the Superior Court of Justice, that had not been in place before.
Here is to hoping that the restrictions associated with COVID-19 are soon lifted and the pandemic blows over. At the same time, I am certainly excited to see whether we will see a significant change in court operations moving forward, as a result of this involuntary technological leap forward.
Thanks for reading!
Find this blog interesting? Please consider these other related posts:
The recent decision of the Ontario Court of Appeal in Laski v. BMO Nesbitt Burns Inc., 2020 ONCA 300 (CanLII) demonstrates the accommodations that will be given to parties in advancing a proceeding, and the limits to that accommodation. It demonstrates that while the courts will be generous to parties requesting adjournments, that generosity will only go so far.
There, the Plaintiff was proceeding with a claim against BMO Nesbitt Burns with respect to their involvement in the setting up of a joint account. The Plaintiff had alleged that the setting up of the joint account was fraudulent. He had already lost his claim against the joint account holder. The court hearing that proceeding found that the joint account passed to the joint account holder by right of survivorship. The Plaintiff sought to continue his claim against BMO. BMO moved to strike this claim.
The matter proceeded on April 23, 2019. The Plaintiff did not appear, but had emailed opposing counsel shortly before the hearing to advise that he was only released from the hospital on April 18, 2019, and could not attend. The motions judge treated the email as a request for an adjournment. The request was denied, and the motion proceeded in the Plaintiff’s absence. The Plaintiff’s claim was dismissed.
The April 2019 adjournment request was not the first adjournment request. The proceeding had a long history. On April 2018, a judge set a return date of September 19, 2018, and dates for filing materials. On September 18, 2019, an adjournment was granted to February 11, 2019, peremptory to the Plaintiff, and revised dates for the delivery of materials were set. The adjournment was at the request of the Plaintiff and the Respondent did not object.
On January 28, 2019, the Plaintiff, a lawyer representing himself, filed a medical note saying that he was unable to work for six months. The motion was adjourned to April 23, 2019. The judge endorsed the record stating that no further adjournments would be granted unless the Plaintiff provided more specific information regarding his health limitations from a qualified doctor.
No materials were ever delivered by the Plaintiff.
The Plaintiff’s claim was dismissed in his absence on April 23, 2019. The Plaintiff appealed.
In dismissing the appeal, the Court of Appeal noted that adjournments would be granted where it was “in the interests of justice”. The judge has broad discretion, and appellate intervention is limited. The Court also noted that the Plaintiff was already granted two adjournments and had failed to comply with previous orders requiring that he file materials and file a medical note if a further adjournment was being sought. Further, while the Plaintiff filed additional medical evidence on the appeal, there was no motion brought to allow the “fresh evidence”. In any event, the further evidence did not explain why responding materials were not filed as required.
An appeal on the merits was also dismissed.
In the context of adjournments, the court will usually grant an adjournment if the there is a good, substantiated reason for the adjournment, and no injustice will result from the delay. Opposing parties know this, and usually act accordingly. (In this case, the first adjournment request was unopposed.) However, the party seeking the adjournment should put strong evidence supporting the request before the court. Additionally, the requestor should not be in default of any other orders of the court without a good reason.
See also, Suzana Popovic-Montag and Devin McMurtry’s blog on adjournments in estate litigation, here.
Thank you for reading.
P.S. And now for something completely different, check out this remarkable obituary.
Amidst this terrible COVID-19 pandemic, as with past crises and other contentious affairs, we see the steady emergence of dichotomies in the policy debate – public health versus the economy, liberty versus protection, individual versus group interests … In some cases, however, we see disputes arise wherein two sides share the same source of inspiration but disagree upon how best to do justice to their ostensibly common cause. Many of history’s religious wars demonstrate this phenomenon – two factions purportedly fighting for the same god, but interpreting the god rather differently. In the context of estates law, this phenomenon is discernible in the commentary surrounding statutory wills in Canada: proponents of statutory wills want to incorporate them in our law out of concern for incapable people’s equality rights, while critics of statutory wills oppose their introduction out of concern for incapable people’s equality rights.
A statutory will, in essence, allows for a judge to execute, revoke or amend a testamentary instrument on behalf of an incapable person. They are often praised for their tax advantages, as they may include testamentary trusts and other tax-avoiding instruments (avoid not evade, an important distinction for the C.R.A.) that are not available to incapable people if their estates devolve under intestacies. The drafter of a statutory will may also arrange a statutory will in a manner that will tend to preserve the affection of an incapable person’s relatives – no spurned children or blindsided spouses, in other words.
There is more controversy with respect to whether statutory wills should be used to “protect”. In one prominent English case, Re Davey,  3 AII E.R. 342, a 92-year-old incapable woman, who was residing in a nursing home, married one the nursing home’s employees, a man 45 years her junior. The woman’s relatives, alarmed at the prospect of the man gaining everything on an intestacy, applied to the court for a statutory will, and won.
Critics of statutory wills observe that since courts cannot interfere with the testamentary freedom of the capable, they should not have the power to commandeer and transform the estate plans of the incapable. Perhaps, as well, skeptics are wary of variable outcomes (i.e. how judges will devise statutory wills), which may flow from what they may perceive as an excess of judicial discretion – unlike an intestacy, the terms of which are definite and predictable; a similar debate is often had with respect to minimum sentences in criminal law, which boils down to, as with statutory wills, how one balances trust for legislators with trust for judicial discretion, to achieve the best results.
In Canada, only New Brunswick has a statutory will. Section 11.1 of the New Brunswick Infirm Persons Act emphasises that courts must act in concert with what incapable people would want, if competent to make a will themselves. In somewhat of a legal bombshell, however, the Manitoba Law Reform Commission has favoured the adoption of a statutory will in Manitoba’s Wills Act.
Thank you for reading … have a wonderful Wednesday!
Suzana Popovic-Montag & Devin McMurtry
A wave of changes in how wills can be signed is sweeping over the legal profession with the force of a tsunami in the last month. While there is still momentum for change, why not include other areas of estate law like an online mechanism to search for unclaimed estate assets. Now is the time to do it.
In the United Kingdom the government posts a weekly list of estates with unclaimed property in those cases where the responsible local authorities were unable to find the legal heirs of estates. It is known as the “Bono Vacantia “ list, and it also provides instructions on making claims where someone has died and not left a will, or where family could not be located.
This publicly available list works well and is similar to the Bank of Canada’s online list of bank accounts with unclaimed balances that can be found here.
In Ontario, there is no publicly available system in place for unclaimed property, or for provincially regulated financial institutions like credit unions, or for estates with unknown heirs. There have been attempts in the past, but, legislation was never put into force. Other provinces, like British Columbia, do have systems in place. In Ontario, if the Office of Public Guardian and Trustee does not locate the beneficiaries of an estate then the money will remain unclaimed. There is no way for a beneficiary to search online for inheritance assets that they might be legally entitled to receive.
The current wave of changes in estate law forced by the pandemic also creates opportunities for further changes – why not do it now?
For more information on unclaimed assets please see:
Thanks for reading.