Category: General Interest
Ante-Mortem Probate, or Pre-Death Probate, is a process of probate which validates the Will of a testator during his or her lifetime and may be particularly useful for testators who fear that their Will may be subject to a challenge following their death.
Various models of Ante-Mortem Probate have been explored in the past by American scholars and include the following proposed models:
- The “Contest Model”, reviewed by Professor Howard Fink, is where each of the beneficiaries are identified, including those that would benefit on an intestacy and the testator essentially becomes the moving party in his or her own suit against all possible beneficiaries of his or her Estate. [Antemortem Probate Revisited: Can an Idea Have a Life After Death? (1976) 37 Ohio St LJ 264]
- The “Conservatorship Model”, explored by Professor John H. Langbein, is where the testator is required to apply to the Court in a manner similar to the “Contest Model”, however, instead of each of the specific beneficiaries being involved, a Guardian Ad Litem (Conservator) represents the interest of all potential beneficiaries, including any unborn or unascertained beneficiaries. [Living Probate: the Conservatorship Model (1980)]
- The “Administrative Model”, set out by Professor Gregory S. Alexander and Albert M. Pearson is neither judicial nor adversarial. There is no requirement of notice to the beneficiaries or in fact “interested parties” as one of the significant concerns with the other models of Ante-Mortem Probate is the confidentiality of the testator. [Alternative Models of Antemortem Probate and Procedural Process Limitations on Succession (1979-1980) 78 Mich L Rev 89]
Only certain American States allow Ante-Mortem Probate, whereas Canada does not have any provinces or territories with a similar arrangement.
Given the number of suits that are commenced following the death of testators across Canada, such an arrangement could be beneficial in that at the very least, a testator who expects that there will be a challenge to his or her Estate plan could take an active part in adjudicating whether his or her Will is indeed, valid.
Considering the complicated familial arrangements that are often present in our society today, perhaps addressing challenges of things like capacity of the testator, undue influence or the presence of suspicious circumstances would make more sense before the testator’s death. This is particularly an issue where a testator’s capacity had been in question for a while and the Will being challenged was executed a decade or more before death.
There are, of course, certain potential negative effects of any Ante-Mortem Probate regime, particularly the possibility that it would encourage litigation that would not otherwise arise, following the death of the testator.
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A recent decision of the Ontario Superior Court of Justice considered an interesting question of fact and law. Will challenges in Ontario are ordinarily grounded on the basis that a testator lacked testamentary capacity, did not know and approve of the contents, or that the Will was procured by undue influence. In Cavanagh et al v Sutherland et al, however, the applicant sought to challenge the validity of her mother’s will on novel grounds; namely, that it was procured as a result of a mistake of fact.
The testator died in July 2016, leaving a Will benefiting 5 of her 6 daughters. The Will expressly excluded her sixth daughter, Carolynn, from sharing in the Estate. Carolynn objected to the issuance of a certificate of appointment on the basis that her mother lacked capacity or that the Will was procured by undue influence.
The estate trustees brought a motion for summary judgment seeking an order dismissing Carolynn’s objection and a declaration that the Will was their mother’s valid Last Will and Testament. At the hearing of the motion, Carolynn changed her position and chose instead to focus primarily on her belief that her mother had been operating on a set of mistaken facts.
Carolynn referred to a payment of $65,000 made to her by her parents in or about 2011, prior to the execution of an earlier will that also excluded Carolynn. She took the position that this payment was made in satisfaction of a loan to her father years earlier that her mother knew nothing about. Carolynn argued that her mother likely believed this payment was a gift to Carolynn in lieu of her inheritance and, accordingly, left her no benefit under the Will.
The court found that the evidence held otherwise. Notably, the evidence showed that the payment was not made in satisfaction of a loan, but rather as a result of a demand by Carolynn. In 1996, her parents had agreed to place her on title to a property to assist them in obtaining a mortgage. The mortgage was subsequently paid off in 2011, at which point Carolynn’s parents asked that she transfer her interest in the property back to them.
The evidence showed that Carolynn refused, instead asserting that there was always an intention that she remain on title to the property as legal owner. Carolynn’s parents ultimately offered to buy out her interest in the property in exchange for a payment of $65,000. Her mother later advised the lawyer who prepared the Will that this was to constitute Carolynn’s inheritance. It was clear to the court that the testator had considered this payment when the Will was drafted.
In the end, the evidence was such the court did not have to consider the effect of a true mistake of fact on the validity of a Will. However, the question of a mistake of fact would ordinarily tie into knowledge and approval and, specifically, whether the mistake was sufficient to negate the validity of the Will. In this case, it was apparent that the testator had turned her mind to the payment to Carolynn, and there was no question of a lack of knowledge and approval.
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Our blog has previously featured posts about the concept of aging in place. Survey results suggest that the vast majority (93% of respondents aged 65 or older) of Canadians wish to continue living at home for as long as possible as they age. Benefits of aging in place may include lower costs (relative to living in long-term care), increased comfort, slower advancement of memory loss, strengthening of social networks, and continued independence and self-determination.
For many, with old age comes physical limitations that may result in decreased mobility and expose seniors to an increased risk of accidents while living at home, whether they are living with or without the assistance of caregivers or other support, absent sufficient safety measures. We recently discovered a guide to making homes senior-safe, which is available online for free through the Senior Safety Reviews website.
The guide features the following:
- 34 practical tips to assist in preventing falls;
- Measures that may assist in the prevention of theft, elder abuse, burns and fires;
- Technology that can be used to promote at-home safety; and
- Preparing the home for extreme weather.
The guide reports that, notwithstanding the goal of many individuals to remain at home into old age, only 1% of homes are currently equipped to safely facilitate aging in place.
This user-friendly guide may be of assistance to older clients and supportive family members in allowing seniors to safely age in place.
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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.
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Please feel free to check out the below blog which discusses protecting against identity theft after death more generally:
My colleague, Garrett Horrocks, recently blogged on a promising breakthrough in research relating to the early detection of Alzheimer’s disease. The research focused on the use of artificial intelligence to assist in the early detection of the disease.
Last week, I came across an interesting article that discusses a promising breakthrough in the United States in treatment for patients who suffer from Alzheimer’s disease and other degenerative diseases. The fact that treatment options continue to be explored by the science, engineering and medical community is hopeful, in light of last year’s announcement by the world’s largest pharmaceutical company, Pfizer, that it is pulling out of research into Alzheimer’s disease.
The treatment consists of implanting a “pacemaker” into the part of the brain responsible for executive and cognitive functions, such as planning, problem solving and judgment. The article explains that a battery pack is then placed in the chest, which sends electrical currents through the wires in a process called “deep brain stimulation” or DBS.
Studies on the use of the implant have shown that the subject patients’ cognitive and daily functional abilities as a whole declined much more slowly than Alzheimer’s patients in a matched comparison group who were not being treated with DBS.
The article highlights one study participant, Ms. Moore, who, prior to receiving the implant, was unable to cook meals or dress herself without assistance. According to the article, Ms. Moore was very fearful that her disease would take away her ability to play hymns on the piano, however, after two years of receiving DBS, she is still able to continue playing the piano and can now cook meals, select outfits and plan outings independently.
My colleague, Garrett, has pointed out in his recent blog that there could be many ways in which the use of artificial intelligence in the early detection of Alzheimer’s could impact succession and estate planning, such as a predictive diagnosis prompting a testator to take steps to implement an estate plan prior to the loss of capacity.
There is no global definition of capacity, and there are varying degrees of capacity that attract different legal tests. Capacity is decision, time and situation specific, such that a person may have capacity to do certain things, but not others, at different times and under different circumstances.
While the full impact of the use of the implant and DBS in treating Alzheimer’s is not yet clear, should the treatment continue with its successes, it may be possible that people living with Alzheimer’s who do not have testamentary capacity today, may have testamentary capacity sometime in the future.
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This week on our podcast Stuart Clark and I discussed the statutory Residents’ Bill of Rights that is within the Long-Term Care Homes Act, 2007.
The importance of this Act should not be overlooked by anyone who is has a loved one in a long-term care home. Section 3 of the Act gives rise to enforceable rights as between the resident and the care home as if they have entered into a contract where the home has agreed to fully respect and promote 27 enumerated residents’ rights.
As an example, the first 4 rights are:
- the right to be treated with courtesy and respect and in a way that fully recognizes the resident’s individuality and respects the resident’s dignity;
- the right to be protected from abuse;
- the right not to be neglected; and
- the right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with his or her needs.
While it may be difficult to determine what the Residents’ Bill of Rights means in day-to-day reality, it is a meaningful starting point for any advocate.
An important resource is the government of Ontario’s Guide to the Long-Term Care Homes Act, 2007 and Regulation 79/10, which is available for download here.
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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.
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A recent study published by the Department of Radiology and Biomedical Imaging at the University of California at San Francisco represents a promising breakthrough in research relating to early detection of Alzheimer’s disease. At the core of the study, however, is a familiar yet unlikely trend: artificial intelligence.
The research team developed an algorithm to read and interpret PET scan images with a particular emphasis on monitoring and detecting changes in glucose uptake over extended periods of time. Glucose monitoring has historically been an important predictive factor in formulating a diagnosis of Alzheimer’s. Healthy cells generally display high levels of glucose uptake, indicative of robust cell activity. Conversely, lower glucose uptake suggests cell inactivity or death, for example, as a result of Alzheimer’s.
The slow, progressive nature of Alzheimer’s has historically rendered it difficult for radiologists to observe the subtle changes in glucose levels until symptoms had reached a stage at which they were no longer meaningfully reversible. The team at UCSF tailored the algorithm to detect subtle features that were imperceptible to the human eye.
To achieve this, the algorithm was fed thousands of PET scan images from thousands of patients at all stages of cognitive impairment, from no impairment through to late-stage Alzheimer’s. Over time, the algorithm learned to discern between the particular features of a given scan which were of assistance in predicting the eventual onset of Alzheimer’s and those which were not. At the conclusion of the study, the algorithm had correctly predicted the onset of Alzheimer’s in more than 92% of cases. Importantly, the algorithm was able to predict the onset of Alzheimer’s, on average, more than six years before the symptoms constituting a typical diagnosis had manifested.
Leaving aside the obvious benefits relating to treatment and reversibility, early detection of Alzheimer’s could stand to have numerous applications in the context of succession and estate planning. For example, a predictive diagnosis could spur a testator to take steps to implement a proper estate plan well before his or her capacity to do so could become a concern. In turn, the testator would have the security that their plan of succession would be carried out according to his or her instructions, reducing the risk of contentious post-death litigation.
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Please feel free to check out the following blogs on related topics:
One of the most gifted items this past holiday season were apparently the home DNA tests which can reveal your genetic ancestry or even if you are predisposed to certain health conditions. As anyone who has taken one of these tests (myself included) can tell you, the test results also contain a long list of other individuals who have also taken the test who you are related to, allowing you to reconnect with long lost relatives.
While my own test results did not reveal any family secrets, the same cannot be said for other individuals who have taken the test, as there have been a growing number of articles recently about how home DNA tests have revealed family secrets which otherwise may never have come to light. Although not all of these secrets are necessarily negative, such as finding a long-lost sibling, others, such as finding out that the individual who you believed to be your father was not in fact your biological father, could be life changing. For the latter, the phenomena is apparently common enough that the Atlantic has reported that self-help groups have formed around the issue, such as the Facebook group “DNA NPE Friends”, with “NPE” standing for “Not Parent Expected”.
In reading through these stories I couldn’t help but wonder if having such a result could impact your potential entitlements as a beneficiary of an estate. What happens if, for example, the individual who you previously believed to be your biological father but the test reveals was not in fact your father should die intestate, or should leave a class gift to his “children” in his Will without specifically naming the children. Could finding out that you were not actually biologically related to your “father” result in you no longer being entitled to receive a benefit as a beneficiary? Could you potentially be disinherited as a beneficiary of an estate by voluntarily taking a home DNA test if your right to the gift is founded upon you being related to the deceased individual?
Who is legally considered an individual’s “parent” in Ontario is established by the Children’s Law Reform Act (the “CLRA“). Section 7(1) of the CLRA provides that, subject to certain exceptions, the person “whose sperm resulted in the conception of a child” is the parent of a child. Section 7(2) of the CLRA further provides for a series of presumptions regarding the identity of the individual’s “whose sperm resulted in the conception of a child“, including, for example, that there is a presumption that such an individual is the birth parent’s spouse at the time the child is born, or the individual in question certified the child’s birth as a parent of the child in accordance with the Vital Statistics Act (i.e. signed the birth certificate). To the extent that there are any questions about parentage, section 13(1) of the CLRA provides that any interested individual may apply to the court at any time after a child is born for a declaration that a person is or is not the legal parent of the child.
In applying these presumptions to our previous questions about the home DNA test, if, for example, the individual who you previously believed was your biological father was your birth mother’s “spouse” at the time you were born, or signed the birth certificate, it would appear that, subject to there being a declaration under section 13(1) of the CLRA to the contrary, there would continue to be a presumption at law that the individual who you previously believed to be your biological father would continue to be your legal “parent” in accordance with the CLRA. To this respect, in the absence of a formal declaration under section 13(1) of the CLRA that the individual was no longer your legal “parent”, there would appear to be an argument in favour of the position that the individual who you previously believed to be your biological father would continue to be your legal “parent”, and that you should continue to receive any benefits which may come to you as a “child” on the death of your “father”, whether on an intestacy or a class bequest to his “children” in his Will.
This presumption, of course, is subject to the ability of any interested person (i.e. the Estate Trustee or one of the other beneficiaries) to seek a formal declaration under section 13(1) of the CLRA that you were not in fact a “child” of the individual you believed to be your biological father. If such a formal declaration is ultimately made by the court, you would cease to be the legal “child” of the individual who you previously believed to be your biological father, and would likely lose any corresponding bequests which may have been made to you on an intestacy or as a member of the class “children” in the Will.
The use of DNA tests to establish the potential beneficiaries of an estate is not a new phenomenon (see: Proulx v. Kelly). What is new, however, are people voluntarily taking such tests en masse in a public forum, potentially voluntarily raising questions about their rights to receive an interest in an estate when such questions would not have existed otherwise.
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If you are anything like me you have previously struggled with how you are to refer to Masters in court. Referring to them as “Master” always felt a little bit awkward, while at the same time you were always not sure if the more formal “Your Honour” was reserved solely for Judges.
If you have ever experienced similar uncertainty wonder no more, as the Consolidated Practice Direction for the Ontario Superior Court of Justice was recently amended to clarify how you are to refer to Masters in court. In accordance with the revised item 114 of the Practice Direction, it is confirmed that you are to refer to Masters as “Your Honour” in English and “Votre Honneur” in French.
Now that the potential embarrassment of using the incorrect honorific in referring to Masters has been resolved, now may also be an opportune time to provide a reminder that in accordance with item 58 of the same Consolidated Practice Direction lawyers are not required to gown when appearing before a Master.
So in summary, in accordance with the updated Consolidated Practice Direction you are to refer to Masters as “Your Honour” when appearing before them, while at the same time you are not required to gown. Consider yourself properly prepared for you next appearance before a Master.
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