Category: General Interest

13 Feb

Expenses Deducted from Estate Trustee Compensation

Ian Hull Estate & Trust, Estate Planning, Executors and Trustees, General Interest, Passing of Accounts, Uncategorized, Wills Tags: , , , , , , , 0 Comments

Pursuant to the testamentary document of a deceased, or the Trustee Act, an estate trustee may take compensation. We have previously blogged on the calculation of estate trustee compensation.

However, in calculating compensation, there are certain expenses that will be deducted from the compensation to which an estate trustee would otherwise be entitled. As a general rule, expenses paid to a third party for tasks that are properly a part of the main duties and expected expertise of the estate trustee (i.e. “executor’s work”) will be deducted from compensation.

Tasks that are Generally Deducted from  Compensation

Generally, the determination of whether the amount will be deducted will depend on the complexity of the task and the circumstances of the particular estate.

If an estate trustee delegates any of his or her general duties to professionals, it is usually a personal expense for which he or she will not be compensated. Examples of this may include preparing the estate tax return, investing the estate assets, and preparing accounts.

Maintaining proper accounts is the primary duty of a trustee and the preparation of  accounts has generally been deducted from estate trustee compensation. If an estate trustee acted improperly, the fees to have accounts prepared will be deducted. While accounts are specialized and the argument has been made that an estate trustee may not have the requisite knowledge to prepare proper accounts, the preparation is still excluded from estate trustee compensation.

An estate trustee is not entitled to be compensated for legal fees paid for their own personal benefit; however, the case of Geffen v Goodman, 1991 2 SCR 353, established that an individual may be compensated for any legal fees incurred to defend the interests of the estate.

If an estate trustee’s actions resulted in a loss to the estate through mismanagement of the estate assets, the amount will likely be deducted from compensation. An example of mismanagement is if the estate trustee fails to prudently invest the estate assets.

Tasks that are Generally Not Deducted from Compensated

In Young Estate, 2012 ONSC 343, the court found that investment management was beyond the skill of an estate trustee, and it was proper to retain and pay private investment counsel out of the assets of the estate. An investment or financial manager may be necessary to hire and pay through estate assets if the expertise is reasonably outside the expertise of the average estate trustee.

An estate trustee can also hire consultants, investment managers, property managers or operating managers if an estate has a corporation as an asset, and can pay their fees out of the estate if it would not be reasonable to expect an estate trustee to have reasonable knowledge of the topic.

In summary, it bears repeating that whether an expense is deducted from compensation will depend on the particular circumstances of the estate and the particular expertise of an estate trustee.

Thanks for reading,

Ian M. Hull

Other Articles You May Be Interested In

Executor and Trustee Compensation

Taxation of Trustee Compensation

When Does an Attorney for Property Lose the Right to Claim Compensation?

09 Feb

Dividing Your Estate Equally

Hull & Hull LLP Estate & Trust, Estate Planning, General Interest, Litigation, Uncategorized, Wills Tags: , , , , , , , , , , 0 Comments

It is often the case that a testator may wish to make a significant inter vivos gift to one or more of their children. He or she may intend that such a gift is to be taken as either an advancement or in addition to a later inheritance. If, in preparing a Will and/or estate plan for a testator, a solicitor becomes aware of prior inter vivos gifts to the testator’s children, the solicitor should inquire further into the testator’s intention in this regard in the context of the estate plan.

Sometimes the dynamics in a family are such that any inequality as between siblings can become a serious issue, potentially leading to estate litigation following a testator’s death. If a testator is aware of this possibility, the testator should be alerted to the possible financial consequences of such a dispute. Of course, there is no way to guarantee that estate litigation will be avoided, but there are steps that can be taken in an estate plan to try to make the administration and distribution of an estate as smooth as possible.

One simple way of at least addressing the issue is to include a clear statement of the testator’s intentions in the Will, such as an indication that any gifts given during the testator’s lifetime are to be considered an advance, or should be given in addition to the child’s entitlement under the Will. Unfortunately, this will not necessarily avoid a fight amongst siblings if any of the children who have not received inter vivos gifts are not happy with the outcome, or if the child who did receive a gift expected to also receive an equal share of the parent’s estate.

An option for ensuring a truly equal distribution is a hotchpot clause. This is also an option if the testator does, in fact, intend that inter vivos gifts were to be given as an advancement on the child’s future inheritance, as is often the case.

A “hotchpot” clause will operate to take into account the value of gifts given during the testator’s lifetime in calculating the division of the estate, with any gifts previously given being subtracted from the portion given to the child in question. Effectively, the value of any substantial inter vivos gifts will be clawed back into the estate for the purpose of determining the value of the estate and the ultimate entitlement of the child or children who received such gifts. The end result of a hotchpot calculation will be that each child will receive from their parent, either inter vivos or from the estate, a share of exactly equal value. Hotchpot can be in relation to inter vivos gifts given, or to the forgiveness of outstanding loans given during the testator’s lifetime.

The concept of hotchpot is based on the equitable doctrine of ademption by advancement, also known as the presumption against double portions. This principle presumes that a parent intends equality between his children, such that if he or she leaves the residue to his or her children equally, but also made an inter vivos gift or advancement to one of the children, the rule will apply to bring the gift into hotchpot so that the intention of equality will not be altered.

Hotchpot, or ademption by advancement, also applies in the case of an intestacy. Section 25 of the Estates Administration Act, R.S.O. 1990, c. E.22, provides that if the child on an intestacy has been advanced assets, with such advancement being expressed by the deceased or acknowledged by the child in writing, the value of the advancement will be considered, for the purposes of s. 25, to be part of the estate to be distributed.

Accordingly, the default position when it comes to inter vivos gifts to a testator’s children will likely be equality, and as a consequence, some form of hotchpot calculation. Chances are that parents usually do intend to divide their estate equally amongst their children, so this rule will probably operate in line with the testator’s intentions in most cases. If a testator does wish to treat their children unequally, the estate plan must be carefully prepared with a view towards all possible consequences.

Thanks for reading,

Rebecca Rauws

Other blog posts you might enjoy:

A Reminder Regarding the Costs of Estate Litigation

Talking About Death with Family

Loan or Gift?

07 Feb

Methods of Advertising for Creditors

Hull & Hull LLP Estate & Trust, Estate Planning, Executors and Trustees, General Interest, Trustees, Wills Tags: , , , , , , , , , , 0 Comments

One of an estate trustee’s duties in administering an estate is to satisfy any outstanding debts owed by the deceased person upon his or her death. An executor who is aware of an outstanding claim by a creditor, but nevertheless distributes the estate, may be personally liable to the creditor. Although there is no requirement in Ontario to advertise for creditors, it is generally advisable to do so in order to enjoy the protection afforded to estate trustees by s. 53 of the Trustee Act, R.S.O. 1990, c. T.23.

Section 53 provides that upon the expiration of due notice to creditors, the estate trustee may proceed to distribute the estate assets, and will not be held personally liable should there be later notice of a claim following such distribution. The notice does not extinguish the debt, but removes the personal liability of the estate trustee.

The Trustee Act does not specify the manner in which notice should be made, nor the length of time that should pass before the notice expires. One commonly accepted method is to advertise in the local newspaper in the location where the deceased lived, usually for 3 consecutive weeks, after which the estate trustee will generally wait at least 30 days before taking steps to distribute the estate. Another option has been to advertise in the Ontario Gazette, which publishes, among other things, legislative decisions and public notices.

However, the Ontario Gazette recently advised that as of January 1, 2017, it will no longer be accepting requests to publish private notices where there is not a statutory requirement to publish in the Ontario Gazette.

According to Widdifield on Executors and Trustees, the practice of advertising for creditors in the Ontario Gazette may, in any event, not have been the most effective manner of publishing a notice, as many people do not read it. On the other hand, Widdifield notes that if the creditors of a deceased person are located throughout Ontario, and are therefore unlikely to see a local advertisement, it may be prudent to advertise in the Gazette as well as the local newspaper. Accordingly, although the Ontario Gazette may not have been the most commonly used method of advertising for creditors, it did provide an option for publishing notices in a more far-reaching manner than the local newspaper, in situations where a more widespread notice is advisable.

We have previously blogged about an online service for publishing notices to creditors (here and here). The company notes that their website is search-engine optimized so that a Google search by a creditor will locate a notice posted with their service. This may provide an alternate option for an estate trustee who feels it is necessary to reach a broader geographical range than is generally reached by a local newspaper.

It has also been noted in Widdifield that, in Ontario, the cost of advertising is a relevant factor. Whether through the company mentioned above (which notes a cost of around $150.00 for a notice and a notarized affidavit of publication), or some other online service, it seems likely that an online advertisement may be more cost-efficient than a print publication.

Based on the convenience and cost-efficiency of online advertising, we may be able to avoid a significant disturbance in the process of administering estates due to the fact that the Ontario Gazette will no longer publish private notices. Change can be a good thing and if we can adapt accordingly, we may be able to establish a new and more efficient customary way of advertising for creditors.

Thanks for reading.

Rebecca Rauws

Other blog posts you might enjoy:

Bankrupt Estates – Can you Inherit Debt?

Estate Trustee Duties

Insolvent and Bankrupt Estates

03 Feb

#TogetherWeAreStronger: The Merger of the Canadian Cancer Society and the Canadian Breast Cancer Society

Doreen So Charities, Estate Planning, General Interest, Health / Medical, In the News Tags: , , , , , , , , 0 Comments

According to The Globe and Mail, two of Canada’s largest cancer charities officially merged on February 1, 2017, being the Canadian Cancer Society and the Canadian Breast Cancer Foundation.  This merger was reported to be a result of decreasing donations which threatened the continuation of decades-long research funding to hospitals and universities.  The merger is designed to cut costs by eliminating overlapping operations between the two charities.

Since the merger, the new charity will operate under the name of the Canadian Cancer Society, and subsequent mergers with additional charities of similar purpose are already on the horizon.  To paraphrase the Chairman of the Canadian Cancer Society, Robert Lawrie, a Toronto-based mergers and acquisitions specialist, informed The Globe and Mail that there are about 300 cancer charities in Canada with the similar cost and revenue challenges.

It turns out that more than 10% of the total annual funding for all cancer research in Canada comes from the Canadian Cancer Society and the Canadian
Breast Cancer Foundation.  Decreasing donations to the Canadian Cancer Society have led the charity to dip into its reserve funds in order to cover program spending and operating expenses.  Accordingly, it’s reserve fell from $151 million to $76.1 million between 2012 and 2016.  Similarly, the reserve of the Canadian Breast Cancer Foundation fell from $36.1 million to $22.3 million between 2012 and 2016.

Donor fatigue and other competing causes (such as the Fort McMurray fire) were cited as possible reasons for the decrease in donations.

As an estate planning tip, it is always prudent to review Wills that were drawn up in the past to ensure that gifts to a charitable organization are properly named and that the intention of the testator remains the same notwithstanding the possibility that the operations of the named charity may have change over time.  Otherwise, consideration should be given to whether the Will should be changed.

Check out the #TogetherWeAreStronger merger on twitter by following @cancersociety here.  While you are at it, check us out @HullandHullLLP.

To donate to the new Canadian Cancer Society click here.

Thanks for reading this week!

Doreen So

02 Feb

Vivian Maier: An Intestate Artist of Posthumous Renown

Doreen So Estate Planning, General Interest, In the News, Litigation, Wills Tags: , , , , , , 0 Comments

I recently watched the documentary Finding Vivian Maier (which was originally released in 2013) and I was struck by John Maloof’s search for anyone who could tell him about who Vivian Maier truly was after her death.   After her death, Vivian Maier (February 1, 1926 – April 21, 2009) gained fame as an American, Chicago-based, street photographer.  During Vivian Maier’s lifetime, she was simply known to those around her as a nanny, and perhaps an eccentric with a camera around her neck.

Vivian Maier’s art was entirely discovered posthumously and it all began when John Maloof attended a local auction house in Chicago and bought 30,000 negatives for another project.  In the course of considering whether the negatives were suitable for Maloof’s book on the history of the Northwest Side neighbour of Chicago, Maloof later became “obsessed with Vivian’s work, and made it his mission to reconstruct her archive”.

The documentary is a chronicle of Maloof’s mission to reconstruct her archive (and of Vivian Maier, herself), including how he found records of her birth from a New York City archive and how Maloof ended up in an remote village in France where her mother’s family lived.

Vivian Maier died unmarried and childless and, as it turns out, intestate.

According to the Chicago Tribune, a Virginia copyright lawyer and former professional photographer named David Deal became concerned that people were selling Vivian Maier’s photographs in manner that infringed copyright law.  David Deal used the information that he learned from Maloof’s chronicles to locate one of Vivian Maier’s first cousins once removed.  In 2014, David Deal became counsel to Francis Baille in a court case where Mr. Baille asked the probate court to name him as an heir to the Estate of Vivian Maier.  Apparently, the information that David Deal used was the story of how Maloof had located another first cousin named Sylvian Jaussaud  by hiring genealogists.  As Maloof’s story goes, he bought Sylvian Jaussaud’s rights to Vivian Maier’s work for $5,000.00.   Ultimately, Mr. Baille’s court case, which involved John Maloof and the Cook County public administrator’s office (the county where Vivian Maier died), settled under private terms that are sealed from the public.

In Ontario, where a person dies without a will, and there is no surviving spouse, children, parent, brother or sister, the property shall be distributed among the nephews and nieces.  If there are no surviving nephews and nieces either, “the property shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation”.  If there are no next of kin either, the property becomes the property of the Crown, and the Escheats Act, 2015 applies”.

For those of you who are interested, I highly recommend watching the trailer to Finding Vivian Maier here, and checking out some of Vivian Maier’s photographs here.

Thanks for reading (and watching)!

Doreen So

31 Jan

Mary Kills People: A New Canadian TV Show on Assisted Suicide

Doreen So Elder Law, Estate Planning, Ethical Issues, General Interest, Health / Medical, In the News Tags: , , , , , , , 0 Comments

Mary Kills People is a brand new Canadian television show starring Caroline DhavernasMary Kills People is a fictional show which centers around Dr. Mary Harris, an ER doctor who engages in assisted suicide.  The series premier took place on January 25, 2017.  According to this Toronto Star interview with the show’s writer, Tara Armstrong, Tara came up with the idea for the show while she was at the University of British Columbia.

As you may be aware from our blog, by reasons dated February 6, 2015, the Supreme Court of Canada found the criminal code prohibitions against physician assisted suicide to be unconstitutional.  This landmark decision originated in proceedings before the British Columbia Supreme Court.  In 2011, the Plaintiffs in Carter v. Canada (Attorney General), amongst other evidence, put forth 13 affidavits from individuals who wished to have the option of assisted suicide.  The Plaintiffs also sought to admit additional witness evidence, on an anonymous basis, from a person called “L.M.” who swore an affidavit which set out the circumstances in which his terminally ill father had ended his own life with the help of his physician and how L.M., his sister, and his sister’s physician assisted L.M.’s terminally ill mother in ending her life.  In an order to protect L.M.’s identity the Plaintiffs’ also sought procedural relief which would allow L.M. to be cross-examined and/or testify behind a screen.  However, this relief was rejected by the Hon. Madam Justice Smith at first instance and L.M.’s evidence was not a part of the trial record.  See Carter v. Canada (Attorney General), [2011] B.C.J. No. 1897, for this particular evidentiary ruling.

While I have not seen the show (yet), and I am not aware of the inspiration or research behind the show, it will be fascinating to see if and how the role of the Courts and judicial reform will be featured on Mary Kills People.

Click here for the Season 1 teaser of Mary Kills People.

Happy reading (and watching)!

Doreen So

30 Jan

A Novel Argument by an Adopted Child in British Columbia

Ian Hull Beneficiary Designations, Estate & Trust, Estate Planning, General Interest, In the News, Litigation, News & Events, Wills Tags: , , , , , , , 0 Comments

As societal norms are continuously changing and evolving, there has been a change in attitudes toward the relationship between adopted children and their biological parents. Today, society encourages adopted children and their birth parents to re-establish a relationship. For example, we have previously blogged on a change of the law in Saskatchewan, which provides for an adult adopted child to reconnect with their birth parents.

In Ontario, the legal status of adopted children is governed by the Child and Family Services Act (the “CFSA”). Section 158(2) of the CFSA provides that, upon an adoption order being granted, the adopted child becomes the (legal) child of the adoptive parent and ceases to be the child of the person who was his or her parent before the adoption order was granted. Pursuant to this statute, once a child is adopted, they are not entitled to their birth parent’s estate unless specifically provided for in the birth parent’s will.

Furthermore, in Ontario, there are no direct provisions governing a testator’s wishes in distributing their property. There is no requirement that all children must be treated equally, or that an individual must leave a part of their estate to their children through a testamentary document. Statutory protection does exist, for dependants, however, under Part V of the Succession Law Reform Act.

In contrast, the law in British Columbia provides that the Court has discretion to vary a will to remedy disinheritance of a child. Pursuant to s. 60 of the Wills, Estates and Succession Act (“WESA”), a parent must make adequate provision for their children, and if the court does not find a testamentary division among the children to be equitable, the court can intervene.

A recent case out of British Columbia considered a novel argument: does the receipt of a benefit under a birth parent’s will entitle an adopted child to argue for a greater share of the estate under section 60 of the WESA?

In the Boer v Mikaloff, 2017 BCSC 21, Mr. Boer was legally adopted as a baby to an adoptive family. He became reunited with his birth mother around the age of thirty, and in his birth mother’s last will and testament, he received a portion of her estate. Mr. Boer challenged his birth mother’s last will and testament in court, arguing that pursuant to s. 60 of the WESA, he was not given an equitable share of his mother’s estate compared to his mother’s other children.

The court held that Mr. Boer was not entitled to an equitable share, as he was not legally considered to be his birth mother’s child. The court held that section 3(2)(a) of the WESA does not allow an adopted child to manipulate a bequest by the child’s pre-adopted parent into a s. 60 claim and applied the case of Canada Trustco Mortgage Co. v Canada, 2005 SCC 54, to uphold that the text, context and purpose of the statute in this regard was clear.

Thanks for reading,

Ian M. Hull

More Articles You Might be Interested In

Can you be adopted as an adult?

Do adopted children still receive entitlement to their birth parent’s estate?

Can you be adopted into a trust?

 

 

 

23 Jan

The Common Law Slayer Rule

Ian Hull Capacity, Estate & Trust, Estate Planning, Ethical Issues, General Interest, Health / Medical, In the News, News & Events, Public Policy Tags: , , , , , , , , 0 Comments

The common law slayer rule makes the law in Canada clear that committing murder will prevent a person from inheriting the estate of the victim. For clarity, the accused must be found guilty and exhaust all of their rights to appeal before the courts will void a testamentary gift or beneficiary designation.

In the cases of Helmuth Buxbaum and Peter Demeter, who were found guilty of murdering their wives, the court refused to allow the men to benefit from their crimes by collecting the proceeds of their wives’ insurance policies. Pursuant to the case of Demeter v British Pacific Life Insurance Co., [1984] OJ No 3363, a criminal conviction will be accepted as proof of criminal activity in civil cases. Therefore, a person who has been convicted of murder cannot argue in civil court proceedings that he or she is innocent and capable of accepting a testamentary gift.

Recently, in Minneapolis, an individual named Michael Gallagher killed his mother, and around a year later, is attempting to obtain her life insurance proceeds. According to an article in the Toronto Star, bedbugs were infesting the apartment of Mr. Gallagher’s mother, and he believed that she would be evicted from her home, and decided to “send her to heaven.” The law in Minnesota is similar to the law in Canada, and their legislation states that an individual who “feloniously and intentionally kills the decedent is not entitled to any benefits under the will.”

This case turns, however, on the fact that Mr. Gallagher was not convicted for murdering his mother. In July, a Judge found that he was not guilty due to reasons of mental illness, stating that he “was unable to understand that his actions were wrong.” This finding allows Mr. Gallagher to potentially have a claim to his mother’s life insurance policy.

In Canada, a  similar finding is known as NCRMD (Not Criminally Responsible on Account of Mental Disorder). If this case took place in Canada, it is likely that Mr. Gallagher would have been found NCRMD. This raises the important question of whether an individual, who is not convicted of murder, but has killed somebody, is still able to claim the proceeds as a beneficiary a testator’s estate or life insurance.

In the case of Nordstrom v. Baumann, [1962] SCR 147, Justice Ritchie stated, “The real issue before the trial judge was whether or not … the appellant was insane to such an extent as to relieve her of the taint of criminality which both counsel agreed would otherwise have precluded her from sharing in her husband’s estate under the rule of public policy.“ The court held that the public policy slayer rule does not apply if the individual was found NCRMD at the time of the killing. Furthermore, in the case of Dreger (Re), [1976] O.J. No. 2125 (H.C.J.), the court held that “[the] rule of public policy [that a person found not guilty for murder] cannot receive property under the will…the only exception to this rule is that a person of unsound mind is not so disqualified from receiving a benefit under the will of a person he has killed while in law insane.“ Lastly, the recent case of Dhingra v. Dhingra Estate, 2012 ONCA 261, upheld a similar finding and allowed the NCRMD individual to apply for the deceased`s life insurance policy.

The law in Ontario seems to uphold the principle that a mentally ill individual who was unable to understand the consequences of their actions should not be automatically disentitled to life insurance proceeds.

Thanks for reading,

Ian M. Hull

Other Articles You Might be Interested In

Red flags when applying for Life Insurance

Life Insurance Fraud and Faking Your Own Death

No-Fault Inheritance

20 Jan

Can you be adopted as an adult?

Stuart Clark General Interest Tags: , , , , , , , , 0 Comments

Earlier this week I blogged about the ability for an individual to be “adopted” into a Trust, as well as what effect such an adoption order would have upon their rights in relation to their birth parent’s estate. While it may seem like a lot of work to have to be legally adopted to gain access to a trust, if the thought of living the trust fund lifestyle leaves you saying “sign me up”, you may be asking whether it is possible for you to be legally adopted as an adult.

The legal adoption of individuals above 18 years of age in Ontario is governed by section 146(3)(a) of the Child and Family Services Act. Such a section provides little guidance regarding what the court is to look to in determining whether to grant such an adoption, simply providing that the court has the authority to make an adoption order for an individual above 18 years of age.

In Re: Q. (A.L.K.), [1996] O.J. No. 353, Madam Justice Katarynych provides the following commentary with respect to the factors which the court should look to in determining whether to grant the adult adoption:

  1. whether the interaction between the applicant and the proposed adoptee is materially and substantially a parent-and-child interaction, assessed not just subjectively by the two individuals at issue, but also from an objective perspective;
  2. whether the parent-and-child relationship between the applicant and the proposed adoptee has any counterpart in the proposed adoptee’s other relationships; in short, whether an adoption is merely adding a parent to the adult child’s life or rather replacing a former parent;
  3. whether the adoption will advertently or inadvertently defeat the legitimate claim of the proposed adoptee’s existing parents under other legislation also enacted for the public good; and
  4. whether the application is made in good faith.

If the court is of the opinion that the adult adoption meets the criteria listed above, it should grant the adoption.

Thank you for reading.

Stuart Clark

Do adopted children still receive an entitlement from their birth parent’s estate?

Can you be adopted into a Trust?

Saskatchewan’s New Adoption Regulations

 

16 Jan

The Case for Financial Support of Non-Conjugal Caregivers

Ian Hull Beneficiary Designations, Elder Law, Estate & Trust, Estate Planning, Executors and Trustees, General Interest, In the News, Trustees, Uncategorized, Wills Tags: , , , , , , 0 Comments

With the aging population, there are increasing numbers of individuals who may require a caregiver. And that caregiver is not always privately employed, or a direct family member or a spouse.

Currently, the socio-economic situation of such unpaid caregivers has been documented as “financial hardship” due to the void created upon the terminated relationship  A recent article published by Canadian Family Law Quarterly suggests a two-pronged statutory remedy be put in place in order to: (i) provide legal recognition of such relationships, and (ii) compensate sacrifices of the unpaid/altruistic caregiver.

Who Should Compensate Unpaid Caregivers?
An important consideration in the contemplation of providing support to unpaid caregivers is whether the state or the individual accepting care should have the onus of providing financial support. In the case of Egan v Canada, [1995] 2 SCR 513, Justice Sopinka ruled in favour of individual responsibility and stated “the government was not required to be proactive in recognizing new social relationships [and that]… it is not realistic for the court to assume that there are unlimited funds to address the needs of it all.”

On the other hand, Nicholas Bala in an article published in the Queens Law Journal states: “an adult who shares a home and provides care for another economically dependent adult should be entitled to the same level of state assistance (or tax relief) [as paid caregivers] whether the dependent is a spouse, parent, sibling, uncle or friend.”

Estate Planning
Currently, aside from equitable and statutory remedies (not available to all and not certain), the only private law safeguard put in place to protect unpaid caregivers is through wills and estate planning. To protect an unpaid caregiver through a will or estate plan would require forethought by the recipient of the care.  The plan would need to be instituted at a point when the individual had capacity, and was able to properly execute a will or testamentary document.

In the case of unpaid caregiving, the care provider who is a family member may be a beneficiary of an existing estate plan (outside of any caregiving obligations). Entitlement to an enhanced benefit would be a fair way to compensate for unpaid care to the testator.

Dependant’s Relief
Another recourse for an unpaid caregiver is to apply for dependant’s relief pursuant to section 58(1) of the Succession Law Reform Act (“SLRA”).

Section 58(1) provides that:

Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them

In the case of Cummings v Cummings, 2004 CanLII 9339 (ON CA),  the Court of Appeal acknowledged that “caregiving may give rise to both legal and moral obligations to provide support.” Therefore, if an unpaid caregiver can establish themselves as a dependant of the deceased individual who was receiving their care, it is possible they may get some recourse under the SLRA.

It nonetheless bears repeating that the case for law reform relates to the person who does not meet the definition of dependant: the non-direct family member, non-conjugal caregiver who altruistically provides caregiving at significant personal sacrifice and is not named in the Will on the termination (i.e. death) of the caregiving relationship.

Thanks for reading,

Ian M. Hull

Other Articles You Might Be Interested In

Caregivers & Fiduciary Obligations

Family Caregivers Bill passes final vote

The Sandwich Generation of Caregivers

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