Category: Executors and Trustees
There is no shortage of complications, stress and potential expense that can occur when a will cannot be located following a party’s death. This is particularly true in Ontario, where the law provides for a presumption of revocation with respect to lost wills: namely, a will will be presumed to be revoked by destruction when the original will cannot be located after the death of the deceased.
Pursuant to Rule 75.02 of the Rules of Civil Procedure, the validity and contents of a will that has been lost or destroyed must be proved by way of an Application before the Court. As the Ontario Court of Appeal held in Sorkos v Cowderoy,  O.J. No. 3652, a party who seeks to prove a lost will bears the onus to prove due execution of the will; provide particulars tracing possession of the will to the date of the testator’s death; provide proof of the contents of the will; and rebut the presumption that the will was destroyed by the testator with the intention to revoke it.
As we have blogged on previously, will registries are a mechanism which may help parties avoid a missing will debacle altogether. One such registry is the new Canada Will Registry, launched this past May 2019 by NoticeConnect. While NoticeConnect has previously specialized in assisting estate practitioners and trustees to advertise for creditors, and to publish notices looking for missing wills, their blog advises that the development of the Canada Will Registry will aim to provide a comprehensive, Canada-wide system for finding wills.
According to the NoticeConnect website, the Canada Will Registry will enable lawyers and firms to upload the basic information about wills they are storing, and to organize, transfer and receive related digital records. Once the Canada Will Registry amasses 100,000 wills, the program will enable the ability for will searches to be submitted.
When someone is searching for a will, NoticeConnect will publish a Knowledge of a Will notice and its system will compare and cross-reference the search terms against the system’s registered wills. If the terms match with a registered will, the registry will notify the registering firm or company, and provide them with the searcher’s contact information. The platform is used by lawyers, trustees, banks, and government.
It will be interesting to see how technology will continue to develop and assist the legal community, and how effective the advancement of will registries will be in combating the challenges of lost or missing wills.
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I noticed a rip in a twenty dollar bank note in my wallet the other day. I was struck by the rip because Canadian bank notes are now made with a polymer that is meant to last longer than paper bank notes. The idea that money can be accidentally damaged is a potential issue for estate trustees who are charged with the responsibility of gathering and preserving the assets of an estate until it’s distributed to the beneficiaries.
Luckily enough, The Bank of Canada has a policy on contaminated or mutilated bank notes. Under certain circumstances, The Bank of Canada will redeem bank notes that have become contaminated or mutilated beyond normal wear and tear and issue the claimant with replacement bank notes. The Bank of Canada will carefully scrutinize each note and the circumstances of each claim in order to determine whether the claim is legitimate.
According to The Bank of Canada, a claim will be rejected if it is their opinion that:
- the identity of the claimant cannot be substantiated;
- the notes are counterfeit or there are reasons to believe that the notes were acquired or are connected to money laundering or other criminal acts;
- there has been an attempt to defraud the Bank or there exists contradictory or improbable explanations about significant aspects of the claim, such as how the notes were damaged or how they came into possession of the claimant;
- any of the security features of the notes have been removed or altered or where the notes have otherwise been altered or damaged deliberately or in a systematic fashion, including dyed or chemically washed or treated, by a process that could be reasonably expected to have the effect of altering them.
While this particular problem might seem unlikely to occur, our blog has covered past instances where cash was found to have been destroyed. There is also a very thorough wikiHow on how to replace damaged currency in the U.S. with some practical tips for worldwide application, such as tips on how to package and deliver the damaged currency to the appropriate authorities.
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Were you recently appointed as Estate Trustee and needed to obtain a Certificate of Appointment of Estate Trustee (otherwise known as “probate”)? In that case, you need to know that an Estate Information Return must be filed with the Ministry of Finance within 90 days of the date of the appointment, setting out the assets in the Estate and their corresponding date of death values.
Typically when an Application for Certificate of Appointment is filed with the Court, a trustee may not have access to every asset of the Estate such that that the value of the Estate may not necessarily be accurate.
As a result, when an Estate Information Return is filed following the Certificate of Appointment being granted, all of the assets of the Estate must be listed. Depending on the values of the assets as confirmed by the trustee following the Certificate of Appointment being granted, a refund may be issued in the event that Estate Administration Tax was overpaid or additional tax may be payable in the event that the value of the assets as listed on the Application is lower than what was listed on the Estate Information Return.
The Estate Information Return may be audited by the Ministry of Finance for up to four years after it is filed. As such, it is important to retain all relevant records in the event of such an eventuality. Another important consideration is that the Ministry of Finance will not typically provide confirmation of receipt of an Estate Information Return so it is prudent to send it via means that would provide you with confirmation of delivery such as fax.
Finally, if a trustee finds out any additional information regarding the value of the assets of the Estate that has any bearing on the Estate Administration Tax payable, an amended Estate Information Return must be filed within 30 days of the new information being uncovered.
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When is it appropriate for a court to reduce estate trustee compensation? The Supreme Court of Nova Scotia addressed this issue in Atlantic Jewish Foundation v Leventhal Estate (“AJF”).
Before getting into the AJF decision, it is worthwhile to include the caveat that determination of estate trustee compensation in Ontario (a summary of which can be found in my paper here) differs somewhat as compared to Nova Scotia. Nonetheless, both provinces use 5% of the value of the estate, subject to the discretion of the court, as the starting point in determining the quantum of compensation. As such, AJF remains informative in Ontario.
The deceased left a Will naming his friend, who was also a lawyer, as his Estate Trustee. AJF was named as the residuary beneficiary. The Will was silent as to estate trustee compensation. As the estate was valued at over $15 million, the Estate Trustee sought compensation in the approximate amount of $896,000, being 5% of the gross adjusted value of the estate. AJF maintained that the amount was excessive and proposed compensation in the amount of $300,000.
In determining how much compensation the Estate Trustee should be entitled to, and applying an approach similar to Ontario’s ‘five factors’, the court made the following observations: the level of responsibility is often greater for higher value estates; the increasing level of responsibility does not necessarily rise in direct proportion to the size of the estate; the Estate Trustee arranged and supervised the funeral and burial, which was mainly handled by telephone; the Estate Trustee acted promptly in selling the house; many of the assets were already in the form of cash, and the Estate Trustee knew the banks the deceased used; the Estate Trustee was diligent, wise and prudent and had to be a hands-on executor; the Estate Trustee made no mistakes; a large part of the estate was made up of investments that were readily converted into cash for distribution; and, the estate was larger rather than complex.
The court noted that 5% should be reserved for estates where there are complicating features that require more than wise and careful planning to maximize the value of the estate. Therefore, the court awarded compensation in the amount of $450,000, being slightly more than 50% of the maximum amount that could be awarded. A larger amount of compensation would have the effect of reading into the Will a bequest to the Estate Trustee that the deceased did not intend to make.
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The requirement to post a bond can be found in section 35 of the Estates Act. An Estate Trustee will be required to obtain an administration bond in instances including where: the deceased passed away without a will; the will does not name the applicant seeking to be appointed; or, the Estate Trustee resides outside of Ontario.
The amount of the bond is to be double the sworn value of the estate. However, practice has developed (see D’Angelo Estate) such that the size of the bond has been reduced to the sworn value of the estate.
While section 36(1) of the Estates Act sets out specific instances where security is not required, it is section 37(2) which gives the court the general power to reduce the amount of the bond or dispense with it altogether. In the helpful decision of Henderson (Re), the court indicates that the applicant Estate Trustee who seeks an order dispensing with the requirement to post a bond, should file affidavit evidence in support, containing the following:
- The identity of all beneficiaries of the estate;
- The identity of any beneficiary of the estate who is a minor or incapable person;
- The value of the interest of any minor or incapable beneficiary in the estate;
- Executed consents from all beneficiaries who are sui juris to the appointment of the applicant as estate trustee and to an order dispensing with an administration bond should be attached as exhibits to the affidavit. If consents cannot be obtained from all the beneficiaries, the applicant must explain how he or she intends to protect the interests of those beneficiaries by way of posting security or otherwise;
- The last occupation of the deceased;
- Evidence as to whether all the debts of the deceased have been paid, including any obligations under support agreements or orders;
- Evidence as to whether the deceased operated a business at the time of death and, if so, whether any debts of that business have been or may be claimed against the estate, and a description of each debt and its amount;
- If all the debts of the estate have not been paid, evidence of the value of the assets of the estate, the particulars of each debt – amount and name of creditor – and an explanation of what arrangements have been made with those creditors and what security the applicant proposes to put in place in order to protect those creditors.
Applicants should make sure to address each of these factors when applying to dispense with an administration bond.
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We have previously blogged on the various ways that an estate trustee may be removed and/or replaced. Examples include scenarios where an estate trustee dies in the midst of administering an estate, or renounces from his or her position, or where an estate trustee is removed by court order.
Ontario legislation provides guidance for beneficiaries and estate trustees in the aforesaid circumstances. Ontario legislation does not, however, specifically address what to do if an estate trustee is deemed mentally incapable to administer an estate, either before or after probate is granted. For more information on what mental incapacity is, and how to address mental incapacity, click here.
If an estate trustee is deemed mentally incapable, the first question to consider is how far along they were in the administration of the estate.
If the estate trustee has not yet applied for a certificate of appointment of estate trustee with a will (hereinafter referred to as the certificate of appointment of estate trustee), then another person may apply for a certificate of appointment of estate trustee in their place. A person acting under a valid continuing power of attorney for property for the mentally incapable estate trustee may renounce and consent (as appropriate) for the estate trustee. If the incapable individual has not appointed an attorney for property, then their statutory or court appointed guardian assumes this responsibility. Where the will names an alternate estate trustee in the event the estate trustee is unable to act, the alternate should be contacted to discuss whether they are willing and able to assume this role.
In circumstances where an estate trustee has been declared mentally incapable of administering an estate after the certificate of appointment of estate trustee has been issued, any person appearing to have a financial interest in the estate may bring a notice of application for the removal and replacement of the estate trustee. Again, the incapable estate trustee’s power of attorney or statutory or court appointed guardian would likely be involved in this process. Once a court order for removal and replacement is obtained, the replacement estate trustee may apply for a Court Status Certificate of Appointment of Estate Trustee with a Will pursuant to Rule 74 of the Rules of Civil Procedure.
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My colleague, Natalia Angelini, recently blogged on the unexpected death of QuadrigaCX’s founder, Gerald Cotton. Mr. Cotton was the only person who held the password to access the holdings of the company’s clients.
The QuadrigaCX case has brought the issue of digital assets and passwords within estate planning to the global stage. While this case is an extreme, most testators, if not all, will have some form of online presence requiring the use of passwords when they die.
Natalia discusses the case as a reminder that in the era of growing digital assets, we need to think about how to ensure the gifting of such assets can be effected, as well as ensuring that estate trustees know how to access such assets. I would like to examine the topic of the digital era and passwords in relation to fraud and identity theft involving estates.
Identity Theft of the Dead
Back in September, 2018, I attended the Law Society’s continuing professional development program called “Practice Gems: Probate Essentials 2018”. While there, a paper written by Craig Ross and Kyle Kuczynski of Pallett Valo LLP entitled “Protecting Estates From Identity Theft” was presented.
The paper examines the increase in identity theft of estates and sets out helpful tips on what steps can be taken by testators and estate trustees alike to protect the privacy and identity of the estate.
The paper discusses concerns regarding the vast online presence a testator may have, the full extent of which will likely be unknown to the intended estate trustee. Personally, I think of how this could easily include not only social media accounts such as Facebook, Instagram and LinkedIn, it would also include the many other applications I use in a day, including but not limited to music streaming apps, fitness apps, online banking apps, video streaming apps and transportation apps such as Uber. All of the various social media platforms and applications we utilize store important information including names, dates of birth, phone numbers, emails, credit card numbers, and in some instances the names of family members.
Tips to Protect your Estate
As the paper points out, this information “sits dormant and vulnerable after death”. Below, I summarize some of the main tips the paper discusses in relation to a testator’s online presence, and how best to protect against fraud and/or identity theft:
- The testator should keep and safely store a master list of accounts, subscriptions and services;
- The testator should keep a record of all websites that store or publish personal information. The Testator should also attempt to minimize the personal data that may be published online, such as birth dates, or city of residence;
- The testator should keep a list of login information and passwords for websites and services regularly used by the testator that retain or publish personal information. The list should be maintained in a secure manner;
- The estate trustee should cancel all memberships and known subscriptions of the deceased;
- The estate trustee should advise all financial institutions and credit agencies of death as soon as possible;
- The estate trustee should redirect mail as soon as possible;
- If account logins and passwords are available, social media accounts and other websites should be deleted. If no logins and passwords are available, the estate trustee should contact the website or account providers in question and request that the account be frozen or deleted; and
- Online service providers should also be notified of the death and instructed to freeze accounts.
In addition to providing these helpful tips, the paper discusses the difficulties an estate trustee may have in actually effecting the deleting and freezing of certain social media accounts and/or websites depending on the user agreement between the testator and the platform or website. They provide the example of Facebook which includes a term within its user agreement that prohibits the sharing of passwords and login information without its permission.
Further, Facebook’s default policy is to memorialize a user’s account upon their death, rather than delete it, and while they may delete it upon request, they are under no obligation to do so.
Out of curiosity, I conducted a quick search on Instagram to learn more about their policies regarding the death of user and it also appears that the app will memorialize, rather than delete the account of a deceased user. Instagram also has a policy against the sharing of login and password information.
In light of the ever evolving digital era we find ourselves in, it is prudent to give consideration to what will happen to our expansive online presences after we die, and to take what steps we can now to protect our assets and identities.
Thanks for reading!
Please feel free to check out the below blog which discusses protecting against identity theft after death more generally:
Traditionally, the transition from adolescence into formal adulthood has been marked by certain milestones: moving in with one’s partner, engagements, weddings, and the first purchase of a car or house, for example.
Today, however, as Dr. Steven Mintz notes in this Psychology Today article on modern adulthood, the journey to achieving adult status is “far slower and much less uniform” than it was in previous generations.
The Canadian Encyclopedia reports that in recent years, the average age of first marriage in Canada is close to 30 years old for women, and 32 years old for men. This contrasts sharply with the 1960s and 1970s, when young people in Canada were more likely to marry between the ages of 23 and 25 years old.
Similarly, while the average young adult in the sixties could expect to achieve such “emblems of adulthood” as home ownership, marriage, children, and a stable job by around the age of 24, far fewer young adults in the 2000s will have attained these markers by this same period. According to Statistics Canada, 54% of men and 43.4% of women in Canada have never married by their early thirties. In Mintz’s article, he notes that rates of childbearing, homeownership, and even car ownership for young adults have also distinctly declined from those of past generations.
Notably, many of the traditional adulthood markers relate to asset accumulation – whether it’s the paycheque associated with a steady and lucrative job, or an investment in a home or vehicle, for example. With fewer millennials travelling down these conventional paths to adulthood, and arguably having fewer assets to their names, should today’s young adults be concerned with formulating a plan for their Estate?
In my view, the answer is yes. This blog will address three of many reasons to set up an Estate Plan as a young adult today.
- Your assets can be distributed to the beneficiaries of your choice, instead of being determined by Intestacy
In Ontario, Part II of the Succession Law Reform Act (the “SLRA”) governs how one’s assets will be divided if a person dies “intestate” – namely, without a Last Will.
As many young millennial adults are unmarried and without children, I will focus on subsections 47(3)-(11) of the SLRA. These subsections delineate how an estate will be divided if one dies without a will and has neither a spouse nor children (notably, common law spouses are not included as a “spouse” on intestacy). These rules can be summarized as follows:
- If the Deceased has no spouse and no issue, the estate goes to the Deceased’s surviving parents, equally.
- If there are no surviving parents, the estate goes to the Deceased’s siblings equally (and if a sibling has predeceased, that sibling’s share goes to their respective children).
- If there are no siblings, the estate goes to the Deceased’s nephews and nieces equally.
- If there are no nephews or nieces, it goes to the next of kin of equal degree of consanguinity – in some cases, distant relatives can end up inheriting from the estate, despite otherwise having no relationship with the Deceased.
- If there are no next of kin, the estate escheats to the Crown.
Making an estate plan empowers a party to decide specifically to whom their assets – of both financial and sentimental value – will go.
Importantly, and as we have blogged on previously, any unpaid debts of the Deceased, in addition to the expenses and liabilities of the estate (e.g. funeral expenses, taxes, legal fees, etc.), are a first charge on the assets of the estate, and must be paid by the estate before assets will be distributed to beneficiaries.
- You can choose who will manage your assets, limited or not
By way of a Last Will and Testament, one can appoint an Estate Trustee (or Estate Trustees) of their Estate. Among many other critical duties, the Estate Trustee is responsible for securing the assets of the Estate; settling any of the of the Deceased’s debts and taxes; ensuring the Deceased’s assets are distributed in accordance with the Deceased’s wishes; and, often, tending to funeral arrangements.
When a person dies intestate and an Estate Trustee is not appointed, the process of the administration of their Estate becomes much more onerous, potentially more expensive, and can be significantly delayed. By executing a Will which appoints an Estate Trustee, one can ensure that a responsible and trustworthy person, who is up to the task, will give effect to their final wishes and manage their estate effectively after death.
- You can document your intentions for your intangible, digital assets
This recent Globe and Mail article sums it up succinctly: neglecting to plan for one’s online assets can create “huge headaches” for executors, especially in light of Canadians’ “expanding digital footprints”.
In addition to those online assets which have true financial value – such as cryptocurrency, Paypal accounts, and some loyalty rewards programs – many digital assets, like Facebook or Instagram accounts, can have significant personal and sentimental value. By stating one’s preferences for digital assets management in an estate plan, one can better ensure that their wishes for these assets are honoured, and potentially reduce conflicts between loved ones that might otherwise arise in this respect. The Globe and Mail cites Facebook profiles as a prime example:
” … some loved ones may want a family member’s Facebook profile to remain active after they pass away, for remembrance; while others might want to delete the account, for closure.”
If this article has inspired to start your estate planning process, we encourage you to meet with a trusted Estates Lawyer to assist with your planning needs.
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Cryptocurrency is aptly described in a recent post as “digital cash stored on an electronic file and traded online… like online banking but with no central bank or regulator. It also has virtual wallets which store the cryptocurrency.”
As with any online assets, access to a deceased person’s cryptocurrency is vital. Without it, heirs will not receive their intended entitlements and the cryptocurrency will remain dormant. A stark example of such a problem can be found in the QuadrigaCX debacle.
QuadrigaCX is Canada’s biggest cryptocurrency exchange. Its’ founder, Gerald Cotton, died unexpectedly and prematurely at age 30. He was the only one who knew the password to access the holdings of the company’s clients. Once news of his death got out, thousands of clients were rushing to withdraw millions in funds. They have not yet been successful, the reason being, as one author explains, is that “…Cotten was the sole person responsible for transferring QuadrigaCX funds between the company’s “cold wallet” — secure, offline storage — and its “hot wallet” or online server…Very little cryptocurrency was stored in the hot wallet for security purposes. Cotten’s laptop was encrypted, and his widow, Jennifer Robertson, and the expert she hired have been unable to access any of its contents.”
QuadrigaCX is evidently now in financial straits. It has filed for creditor protection in the Nova Scotia Supreme Court. Further, Ms. Robertson has reportedly sought the appointment of Ernst & Young to oversee the company’s dealings while attempts to recover the lost holdings continue.
This unfortunate situation highlights the risk that may accompany cryptocurrency’s lack of regulation. It also serves as a reminder to us that with ownership of digital assets growing, we need to think about how to ensure that gifting such assets is effected, including making sure to inform our intended estate trustees of how to access the assets. Doing so is helpful because, as the above case demonstrates, it is a must in the case of cryptocurrencies to have the password relevant to the wallet where the currency is held. Further, with an asset as volatile as cryptocurrency can be, a fully informed estate trustee will be in a better position to avoid delays in the administration of an estate and/or allegations of mismanagement if he/she is able to quickly access and distribute such assets.
Thanks for reading and have a great day,
Section 38 of Ontario’s Trustee Act provides that an estate trustee may commence or maintain, on behalf of a Deceased individual, an action in tort that could otherwise have been commenced by that individual. As discussed in related blogs on this section, such actions are ordinarily subject to a stricter limitation period than that of other civil claims.
In typical civil claims, Ontario’s Limitations Act imports a two-year limitation period which begins to run as of the date the cause of action was discovered. The limitation period under the Trustee Act, however, begins to run as of the Deceased’s date of death and is not subject to this principle of discoverability, unless the Plaintiff can satisfy the Doctrine of Special Circumstances. The decision in Graham Estate v Southlake Regional Health Centre recently contextualized this Doctrine and, in so doing, suggests that the principle of discoverability will not always be dispensed with.
In May 2008, the Deceased in Graham Estate underwent a botched surgical procedure that ultimately gave rise to a claim in medical negligence. The Deceased subsequently died in February 2009, and a claim was commenced by the Deceased’s Estate in May 2010, well within the two-year limitation period under section 38(3).
As part of this initial claim, the Estate obtained disclosure of relevant medical records relating to the operation. In or about 2015, more than four years after the limitation period had expired, counsel for the Estate subsequently received an additional unprompted cache of records that had not been previously disclosed. This new set of records gave rise to a claim against a party who was not a party to the existing litigation.
In February 2017, the Estate subsequently brought a motion seeking to add the Proposed Defendant as a party to the litigation. At issue in this decision was whether the Estate was out of time as a result of the strict operation of section 38(3) of the Trustee Act. The Court ultimately held that the Estate ought to succeed on the basis of the Doctrine of Special Circumstances.
As the claim against the Proposed Defendant was, on its face, out of time, the Estate argued that the Doctrine of Special Circumstances ought to apply. This Doctrine is comprised of a two-step test to be satisfied by the Plaintiff:
- The Plaintiff must rebut the presumption of prejudice that would result to the party to be added; and
- The Plaintiff must satisfy the Court that special circumstances justify the addition of that party.
At the outset, the Court held that the loss of a limitation defence immediately gave rise to a presumption of prejudice in favour of the Proposed Defendant. However, the Estate identified a number of factors that operated to rebut the presumption of prejudice, notably:
- The claims to be made against the Proposed Defendant were identical to those already commenced against the existing Defendants;
- The action against the Proposed Defendant was tenable in law; and
- There would be no procedural unfairness to the Proposed Defendant if he were added as a party, as no trial date had been set and he would have sufficient time to prepare a defence.
The Court then considered whether there were any equitable special circumstances that merited the addition of the Proposed Defendant as a party. As above, the Court held that there were, but in so doing, in effect considered factors not unlike the discoverability principle.
Chiefly, the Court noted that the Proposed Defendant’s role in the circumstances giving rise to the initial negligence claim had not become apparent until the limitation period had already expired. The Court found that the Estate had made efforts to obtained the relevant records well within the limitation period, and that the records implicating the Proposed Defendant had erroneously been omitted. The Court held that this was not a case in which the Estate was “handicapped by its own inaction.”
While section 38(3) of the Trustee Act on its face imports a strict limitation period, the Graham Estate decision nonetheless suggests that the courts will consider discoverability, among other factors. That said, this analysis is only engaged if the presumption of prejudice is rebutted.
Thanks for reading.