Catto v. Catto illustrates some of the myriad of issues that can surround the administration of an estate.
There, the deceased died at the age of 50 without a will. He was survived by his wife of one year, and his mother and a brother.
The mother applied to the court to be appointed as Estate Trustee. The mother also sought an Order that the deceased’s ashes be exhumed, so that one half of the ashes could be buried in a family plot in Quebec, and an order that she be reimbursed for funeral expenses.
The brother sought an order for the inspection of a hockey card collection, so that he could determine which of the hockey cards in the deceased’s possession belonged to him.
The deceased’s spouse is alleged to have initially agreed to burial of the deceased’s ashes in the family plot. However, she subsequently obtained the ashes, and buried them in Peterborough.
In deciding what to do with the ashes, the court considered the question of who should be appointed as estate trustee. The estate trustee would be entitled to decide on the location and manner of burial of the ashes.
With respect to the appointment of estate trustee, the court considered the relevant statutes. The court noted that the surviving spouse was entitled to all of the property of the deceased’s estate on intestacy, and did not have any interest that was adverse to the estate, such as a claim for dependant support or other relief against the estate. Buttressing this, the court noted that the deceased’s mother was a resident of Quebec, and that s. 5 of the Estates Act prohibits granting letters of administration to a person not residing in Ontario.
As the deceased’s spouse was appointed Estate Trustee, she alone could determine the disposition of the ashes. The mother’s claim for half of the ashes was dismissed.
The deceased’s mother was entitled to be reimbursed for funeral expenses by the estate. The court rejected the argument that the mother had made a gift to the estate of the funeral expenses. To find a valid gift, the court requires i. an intention to make a gift; ii. acceptance of the gift; and iii. a sufficient act of delivery. Here, the first and second points were not present. There was no intention on the part of the mother to make a gift, and prior to appointment by the court, there was no administrator of the estate able to accept the gift.
The court reviewed evidence that the deceased and his brother collected hockey cards together for many years. The cards were originally in possession of the brother, but were then moved to the deceased’s residence as the brother was expecting twins and did not have space to store the cards. There was allegedly a list kept by the deceased as to which cards belonged to whom. However, this list could not be found.
The court ordered that the cards be inspected by the surviving brother. If the list could not be found, then the cards were to be divided between the surviving brother and the deceased’s estate “in a randomized manner”.
In a separate decision, the court addressed the costs of the parties. The surviving spouse claimed costs of $10,133 plus disbursements and HST. In light of the divided success, and an offer to settle made by the spouse, the mother and brother of the deceased were ordered to pay costs to the surviving spouse of $5,000 plus disbursements and HST.
- Make a will (it is, after all, Make A Will Month);
- if you are holding property for someone else, or if someone else is holding property for you, have clear, shared records.
Have a great weekend.
You advise and document estate plans for clients. You’re meticulous about detail and always do a thorough job. Is there anything you’ve overlooked?
Likely not when it comes to estate assets – but what about the softer, quality of life advice related to the family and estate of your clients? A few actions can not only smooth out the estate settlement process but also enhance the life of your clients today.
Here are five actions that all of us should consider before we die.
Tell your family your estate intentions
We’ve said it before: people can’t read minds and they don’t know what they don’t know. There can be many good reasons for the unequal treatment of family members under a will (such as a disability) but unequal can equate to “unloved” unless it’s explained. Before you put the final touches to your estate documents, let your family members know what you intend to do, and work out any issues now, because you won’t be around to work them out after you’re gone.
Pay for an extended family trip
Travel brings people out of their comfort zone and creates interaction that would otherwise never occur. It may not be all love and honey – family dynamics are what they are – but you may be pleasantly surprised at what happens when your adult children and their families interact outside of their day-to-day lives. The challenge of bringing people together can seem overwhelming, but it’s a challenge worth tackling. It doesn’t have to be an African safari (although those are great if you can afford it). Just make it two nights or longer at a place that’s away from anyone’s family home, cottage or chalet. If they can drop all plans and attend your funeral (they surely will), they can create time for a family trip that mom or dad wants.
Give some gifts during your lifetime
We all know the saying “you can’t take it with you.” As much as we believe it, it can be hard to act on it because we all (secretly) think we’ll live forever. But we won’t, and there’s joy in sharing now. So as the song says, “let it go”, or at least let some of it go. If you have surplus wealth, or surplus assets of value – such as artwork that will never fit in a newly downsized space – you can bring and experience great happiness in sharing things now, rather than after you’re gone.
Record some early memories
You’ve likely experienced this at a family gathering. You tell a simple fact about your early life and someone says: “I never knew you spent a summer in New York City.” It shouldn’t surprise any of us – our adult children can’t possibly know about the 30 or 40 years of our lives before they were born, unless we tell them.
So, record some memories – you’re bound to surprise both them and yourself with what you come up with. You can find some good tips on prompting those memories here: http://www.instructables.com/id/Record-Your-Familys-Oral-History-before-it-dies-/.
Make your funeral intentions known
It’s a hotly debated question: is a funeral for the living or for the dead? In most cases, it’s for both, which is why it makes sense to put some thought into what you envision for your funeral and then talk to your family to work towards a plan that everyone can agree on. There are different levels of pre-planning, both formal and informal, but having the wishes of you and your family documented can go a long way toward a smooth process at a difficult time. For those in Ontario, the provincial government provides a good overview of your rights related to pre-planning with a funeral service provider: https://www.ontario.ca/page/pre-plan-and-pre-pay-final-arrangements.
Thank you for reading!
You’re the newly appointed executor of a deceased person’s estate. There’s a lot on your plate – securing assets, finding beneficiaries, arranging a memorial service and much else. While your attention quite rightly is on looking after the needs of living family members, the needs of another person should also be top of mind: the deceased.
Unfortunately, death is no barrier to unscrupulous people who steal the personal information of a deceased individual or adopt their identity for personal gain. In the U.S., an estimated 800,000 fraudulent accounts are created by identity theft of a deceased individual each year. And Canadians are not immune – it happens here too.
By assuming the identity of a deceased individual, a thief can transfer assets, open accounts, receive tax refunds, purchase goods and more. While there are many sophisticated methods of obtaining identity information, a lot of identity theft is of the “low tech” variety, using techniques as simple as gleaning information from obituaries and opening mail in the deceased individual’s mailbox.
As an executor, there are some simple steps that can help protect against post-mortem identity theft. Here are some examples:
- Forward mail: One of the first things you should do as a newly appointed executor is ask the post office to forward the deceased person’s mail to your address. This ensures you have control of all information addressed to the individual.
- Avoid too much personal information in the obituary: There are many details in obituaries that can be used to forge an identity. These include addresses, maiden names, ancestries, occupations, and birth and death dates. You want to provide a heartfelt tribute for sure, but less is more when it comes to revealing personal information specifics.
- Notify credit bureaus: This ensures that inquiries will be flagged if someone is seeking credit information, and can prevent fraudulent transactions from taking place. You can view sample letters to credit bureaus here: http://www.smithsfh.com/Credit_Bureau_Canada_Notification_2012.pdf
- Be alert to theft by family members. It’s not just strangers who commit post-mortem identity theft. In many cases, it’s a family member who commits the crime. It could be a relative in financial difficulty, or one who feels they were wronged in the will or estate plan. So, to the extent possible, keep the circle of those privy to the personal information of the deceased as small as possible.
And for those who are currently planning their estates, they can help protect their identity after death by ensuring that their loved ones know about memberships that might otherwise be overlooked, from fitness clubs, to Costco, to loyalty programs. This allows the executor to notify these institutions immediately to close their files.
This American news article provides some additional tips, most of which apply equally in Canada:
Thank you for reading … Have a wonderful day!
An estate trustee has the legal authority to arrange the place and manner of the burial or cremation of the deceased. The estate trustee also has a duty to see that the deceased is buried in a suitable manner and that no undue expense is incurred. Where a person dies without a will, and an administrator has not yet been appointed by the court, the deceased’s next of kin may direct the manner of burial or cremation. In some cases, the deceased may have made arrangements for a funeral and pre-paid for their own burial or cremation. There are certain statutory and common law consumer protections in regard to the procurement of funeral services.
Burial and cremation services are governed by the Funeral, Burial and Cremation Services Act, 2002. Pursuant to s.42(1), a purchaser of internment rights, defined in s. 1 as “the right to require or direct the interment of human remains in a lot”, may cancel the contract at any time within 30 days after the contract was made. The operator must fully refund all money received upon notice of cancellation. A cemetery operator will be unable to enforce a contract unless it meets the formal requirements set out in the regulations.
Contract law also provides certain protections to those purchasing funeral or burial services. In the recent case of Tsekhman v Spero, the Court held that contracts for funeral and interment services are contracts for “peace of mind”. A breach of contract, therefore, can result in damages for mental suffering. In this case, the Court found that a delay in fulfilling the contract for burial prejudiced the Plaintiffs’ ability to abide by their Jewish laws and customs and to honour their parents’ wishes. The court held damages for loss of peace of mind in a contract case such as this one should be modest.
Thank you for reading … enjoy the rest of your day!
Other articles you might enjoy:
Celebrities and Explosions.
Now that I have your attention, yes today’s estate blog is actually about celebrities and explosions.
Johnny Depp, the famed actor.
Now I really have your attention.
I recently came across this article in The Guardian, which highlighted the efforts made by Depp to plan Hunter S. Thompson’s funeral after his passing in February 2005.
Thompson, well known for authoring Fear and Loathing in Las Vegas had made requests prior to his passing to Depp, a close friend, as to how he wanted his ashes to be scattered. Depp stuck to his word and took steps to ensure that Thompson’s last wishes came true and made sure that “his pal was sent out the way he wanted to go out”.
As such, Thompson’s ashes were fired from a cannon that was placed atop a 153-foot tower shaped like a double-thumbed fist, clutching a peyote button, on Thompson’s Colorado farm. Yes, apparently Thompson loved explosions.
The total cost of the funeral was $3 million, which apparently, was funded entirely by Depp.
The surviving spouse, Anita, Thompson, supported Depp’s decision and even went on to state that the grounds where the cannon stood, remains a meditation labyrinth that is used every day at Thompson’s Colorado farm.
In Ontario, an estate trustee has the paramount legal authority to determine the place and manner of burial. There is no legal requirement for the estate trustee to follow the wishes expressed by the deceased (or the family of the deceased). Where a Will includes burial instructions, such instructions are precatory and not binding on the estate trustee.
Find this topic interesting? Please consider these related Hull & Hull LLP Blogs:
- Who Has the Authority to Make Funeral and Burial Arrangements on an Intestacy?
- Ashes to Ashes in Bali: David Bowie’s Last Will and Testament
- Cryogenics and Funeral Arrangements
I recently came across an interesting English decision which addresses the Court’s involvement in funeral arrangements.
In the case of Re JS (Disposal of Body), the High Court of Justice (in England and Wales) was forced to consider a dispute between the divorced parents of a 14 year old daughter, JS, who sought to have her body cryogenically frozen at death.
Unfortunately, JS was diagnosed with a rare form of cancer, and there was little hope of her recovering. As a result of researching cryogenics and cryopreservation on-line, JS said that “I’m only 14 years old and I don’t want to die, but I know that I am going to. I think being cryo-preserved gives me a chance to be cured and woken-up, even in hundreds of years’ time. I don’t want to be buried underground“.
JS’ mother supported her daughter’s wish, whereas the father’s position fluctuated throughout.
The Judge held that the mother is best placed to manage the request for cryopreservation. One of the reasons for this cited by the Judge is that JS’ father had not seen JS for the prior eight years.
Accordingly, the Judge made a specific order “permitting the mother to continue to make arrangements for cryopreservation and an injunction preventing the father from interfering with arrangements made with respect to the disposal of the body“.
Subsequently, JS passed away and her body was taken to the Cryonics Institute, in the USA.
This is an interesting decision not only because JS’ wishes were followed even though she was a minor, but also and because the Court indirectly provided guidance as to the appropriateness of funeral arrangements while the affected person was still alive.
For other interesting Hull & Hull blogs on Cryogenics & funeral arrangements, please see:
- Who Has the Authority to Make Funeral and Burial Arrangements on an Intestacy?
- Pre-Paying for Your Funeral
- The Legend of Ted Williams
This week on Hull on Estates, Natalia Angelini and Umair Abdul Qadir discuss Catto v Catto, 2016 ONSC 3025 (http://bit.ly/2cLwM6I), and the conflicts that can arise over funeral and burial arrangements on an intestacy. Read more about the Catto decision on our blog (http://bit.ly/2c4dOH3). And for more on the duty of the Estate Trustee to make funeral and burial arrangements, be sure to check out a paper from our Estate, Trust and Capacity Law Breakfast Series entitled “The Moment of Death and Beyond: Preliminary Duties of the Estate Trustee”. (http://bit.ly/2cJeekY)
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
Shortly after a death, the Estate Trustee is called upon to make important decisions about the funeral and burial arrangements for the deceased.
In many instances, the deceased’s Last Will and Testament may provide instructions to the Estate Trustee regarding the funeral or the burial. However, such wishes regarding burial and funeral arrangements are precatory and not binding on the Estate Trustee. Generally speaking, while it is advisable for an Estate Trustee to consider the wishes of the deceased and his or her next-of-kin when making decisions about the funeral and the burial, the Estate Trustee’s authority to make such decisions is only constrained by a legal duty to dispose of the remains in a dignified manner.
While the authority to make these decisions is fairly straightforward where a deceased person leaves a Will naming an Estate Trustee, conflicts between family members can arise when the deceased dies intestate. This was recently illustrated by the Honourable Justice Smith’s decision in Catto v Catto, 2016 ONSC 3025.
In Catto, the Deceased died after less than a year of marriage to his spouse, Donna. Donna made arrangements for the Deceased’s funeral and burial in his hometown of LaColle, Quebec. However, before the Deceased’s ashes could be buried in his family’s plot in Quebec, Donna advised the funeral director that she wished to transport the ashes back to Peterborough. The funeral director advised Donna that the Deceased’s place of burial was ultimately her decision, and Donna decided to have the ashes interred in Peterborough without notice to any of the Deceased’s family members.
The Deceased’s mother subsequently brought an Application, alleging that the Deceased had wished to be buried in the family plot in Quebec and that Donna had agreed to the Deceased’s burial in the family plot. The Deceased’s mother sought Orders that the Deceased’s ashes be exhumed and that half of the ashes be returned to the family plot. As the Deceased had died without a Will, she also sought an Order appointing her as the Deceased’s Estate Trustee.
Where a person dies intestate, section 29 of the Estates Act gives the Court the discretion to appoint the spouse or common law partner, the next-of-kin, or both the spouse and the next-of-kin as the Estate Trustee. Justice Smith confirmed that section 29 does not confer a priority to the spouse to be appointed as Estate Trustee.
However, in the circumstances, given that the Deceased’s mother lived outside Ontario, that Donna was the sole beneficiary of the Deceased’s Estate, and that there was no potential conflict of interest with her appointment as Estate Trustee, Justice Smith concluded that the administration of the Deceased’s Estate should be committed to his spouse.
Thus, Justice Smith held that “[t]he decision on where the deceased is to be buried and the manner of burial is a right that is granted to the administrator of the Estate which in this case, is his wife Donna.” The relief sought by the Deceased’s mother with respect to the exhumation and reburial of the Deceased’s ashes was denied.
The Catto decision highlights the conflicts that can emerge on an intestacy, and serves as a reminder of the importance of making a Will: although the testator may not be able to dictate the terms of his or her funeral and burial, he or she may be able to minimize the conflict and acrimony over who has the authority to make these decisions by simply naming an Estate Trustee.
Thank you for reading,
Umair Abdul Qadir
Obituaries come in various shapes and sizes. There is no law setting out what an obituary must include, nor where it must be published.
A cursory review of our prior blogs on this topic indicate that humour appears to be a recurring theme.
The obituary for Mary Anne Noland, is no exception. The writer clearly had politics in mind when writing Mary’s obituary, which states:
NOLAND, Mary Anne Alfriend. Faced with the prospect of voting for either Donald Trump or Hillary Clinton, Mary Anne Noland of Richmond chose, instead, to pass into the eternal love of God on Sunday, May 15, 2016, at the age of 68. Born in Danville, Va., Mary Anne was a graduate of Douglas Freeman High School (1966) and the University of Virginia School of Nursing (1970). A faithful child of God, Mary Anne devoted her life to sharing the love she received from Christ with all whose lives she touched as a wife, mother, grandmother, daughter, sister, friend and nurse. Mary Anne was predeceased by her father, Kyle T. Alfriend Jr. and Esther G. Alfriend of Richmond. She is survived by her husband, Jim; sister, Esther; and brothers, Terry (Bonnie) and Mac (Carole). She was a mother to three sons, Jake (Stormy), Josh (Amy) and David (Katie); and she was “Grammy” to 10 beloved grandchildren. A visitation will be held from 5:30 to 7:30 p.m. on Tuesday, May 17, at Trinity United Methodist Church, 903 Forest Ave., in Henrico. A memorial service will be held on Wednesday, May 18, 1 p.m., with a reception to follow, also at Trinity UMC. In lieu of flowers, memorial contributions can be made to CARITAS, P.O. Box 25790, Richmond, Va. 23260 (www.caritasva.org).
David Bowie’s Last Will and Testament was filed last Friday in Manhattan’s Surrogate’s Court.
The Bowie Estate is purported to be worth $100 million. Bowie’s wife, Iman, will receive one-half of the Estate, in addition to their SoHo apartment, in a trust managed by a “pair of New York lawyers” according to Vanity Fair. As reported by Page Six, the executors of the Bowie Estate, William Zysblat and Patrick “Paddy” Grafton Green, will pay Iman income from the trust four times a year. Iman will also have the right to seek additional funds paid to her in support of her “health, education and maintenance”.
Bowie’s son, Duncan Bowie, will receive one-quarter of the assets of the Estate outright.
Bowie’s daughter, Lexi Bowie, who is presently 15 years old, will receive the remaining quarter of the Bowie Estate when she turns 25 years of age. Lexi will also inherit Bowie’s vacation home in up-state New York at that time.
Various members of Bowie’s staff were also provided with sizeable cash bequests.
In addition to carrying out Bowie’s estate plan, the executors of the Bowie Estate were directed to transport Bowie’s remains to Bali so that he may be cremated in Bali in accordance with the Buddhist rituals of the country. While recognizing the potential difficulties in carrying out this task, Bowie’s Will also allows for his cremation to take place elsewhere, and for his ashes to be scattered in Bali.
In Ontario, there is no legal requirement for an estate trustee to follow the directions of the testator as it relates to manner and place of the burial. Such wishes are merely precatory.
Thanks for reading,