Category: In the News
In our blog on March 18th, we gave some ideas for getting formal wills executed when the lawyer couldn’t be present to witness. In today’s blog, we have a few more options for our clients to consider if getting a Will executed immediately is necessary.
As we all know, holograph Wills are valid in Ontario. To qualify as a valid holograph Will, the document must be in the handwriting of the Will-maker and signed. The Succession Law Reform Act speaks to being “wholly” in the Will-maker’s handwriting. However, case-law supports the validity of a handwritten portion of a document, even if the entire document is not in the Will-maker’s handwriting. To the extent any part of the document is not in the Will-maker’s handwriting, that part will be excluded from the otherwise valid holograph document.
We have several clients who are in isolation making it impossible to have two witnesses execute our drafted Will. For a simple but, emergency situation, we are recommending that a holograph Will be done. We have a few key provisions to be included as a bare minimum:
- Identifying the document as a Will;
- Revoking prior Will;
- Appointing an executor;
- Simple dispositive provisions;
- Executor’s power to sell; and
The key instructions are:
- The entire document must be handwritten by the Will-maker; and
- The Will-maker must sign the document at the end.
Proof of handwriting will be necessary if the holograph Will must be probated. One option that may come in handy is to have the Will-maker video the writing and signing of the document.
We also strongly recommend that the client come in to sign a formal Will as soon as possible.
Click on the link to see a sample Client Holograph Will Instruction sheet for use in these kinds of situations.
In Monday’s blog, we’ll discuss the novel idea that our colleague, Mary Stokes raised. Can a client use a simple holograph Will to incorporate the terms of a comprehensive formal Will which can’t be properly signed because of a lack of witnesses?
Hope you are all safe and healthy,
Yesterday, Arielle Di Iulio blogged on COVID-19 and the response by the Ontario Superior Court of Justice.
In a Notice dated March 15, 2020, the Chief Justice of Ontario advised that the Superior Court of Justice is suspending all regular operations until further notice. All criminal, family and civil matters scheduled to be heard after March 17, 2020 are adjourned.
There is an exception for “urgent matters”. as defined in the Notice, and a procedure is set out for dealing with such urgent matters.
For the most part, the court is still accepting filings. Where an application is to be issued, it is issued without a fixed return date.
How can parties obtain relief if a matter is not urgent? Consider a motion in writing.
Rule 37.12.1(1) of Ontario’s Rules of Civil Procedure allows a motion to be brought in writing without the attendance of the parties (unless the court orders otherwise), where the motion is on consent, unopposed or without notice.
Further, under Rule 37.12.1(4), a party may propose that the motion be “heard in writing” without the attendance of the parties where the “issues of fact and law are not complex”. In response, the responding party may agree to have the motion “heard and determined in writing”, or serve a notice that the responding party intends to make oral argument.
As serving a notice of intention to make oral argument will essentially, for now, prevent the motion from proceeding, now more than ever parties and their counsel must practice the “three C’s” of the commercial court: co-operation, communication and common sense.
Stay safe. Have a great, but isolated weekend.
Ontario has officially declared a state of emergency amid the COVID-19 pandemic, and efforts to quell the spread of the coronavirus are now stronger than ever. Indeed, the Federal Government is urging everyone to engage in social distancing, and the courts are no exception.
On March 15, 2020, the Superior Court of Justice published a Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings (the “Notice”), wherein it announced the suspension of Superior Court of Justice regular operations.
Specifically, the Notice states that all criminal, family and civil matters scheduled to be heard on or after March 17, 2020 are adjourned except for urgent and emergency matters. Matters considered to be “urgent” are set out in the Notice and include motions and applications related to public health and safety and COVID-19; the safety of a child or parent; and time-sensitive civil motions with significant financial repercussions if not heard, among others.
To bring an urgent matter, the motion and application materials can be filed with the court by email. Notably, where it is not possible to email a sworn affidavit, an unsworn affidavit can be delivered as long as the affiant participates in any telephone or videoconference hearing to swear or affirm the affidavit. Urgent matters may be heard and determined in writing, by teleconference or videoconference, unless the court determines that an in-person hearing is necessary and safe.
Although people are being advised to avoid unnecessary attendances at Court, they nevertheless remain open and parties can continue to process “regular filings”. However, the flexible procedures that have been put in place for urgent matters do not extend to regular filings, which remain subject to the Rules of Civil Procedure.
The court’s response to COVID-19 is a prime example of how the legal system as a whole is being forced to lean on technology in these unusual and uncertain times. While many legal professionals have already adopted digital practices, the courts continue to be behind the times. The Auditor General’s latest audit of Ontario’s court system found that “the Ministry’s pace in modernizing the court system remained slow, and the system is still heavily paper-based, making it inefficient and therefore keeping it from realizing potential cost savings”. Perhaps this period will give the much-needed impetus for courts to modernize their operations by using electronic service, filing, hearings, and document management more routinely. This would likely be a welcome change for all.
Thanks for reading and stay safe!
Like many of you, we are struggling to figure out ways to get our clients’ Wills executed during this period of social distancing.
Ontario has very strict rules on how a Will has to be executed in order for it to be valid. Unlike many other Provinces, Ontario does not have “substantial compliance” legislation that allows a Court to validate a Will that has not been duly executed.
These rules cannot be changed except by legislative action. The Succession Law Reform Act would have to be amended. The Law Society of Ontario is not able to give permission to override these requirements.
The key requirements are that:
- The Will-maker must sign or acknowledge his/her signature in the presence of two witness; and
- Both witnesses must sign in the presence of the Will-maker and each other.
The “presence of” requirement is generally regarded as having to be in the same room and be able to see one another signing the Will.
We have almost always resisted sending the Will out to be executed by the client without our presence for fear that it would not be executed properly. However, under the current circumstances, we are adopting a process for our clients who need to have their Wills signed.
Protocol for Remote Execution
Firstly, we explain to the client the strict rules for signing the Will and that the Will won’t be valid unless these rules are followed exactly.
We also remind them of who cannot be a witness:
- A Beneficiary (even a contingent beneficiary);
- The married spouse of a Beneficiary; or
- A person under age 18.
A person who is named as an executor, but not a beneficiary, can be a proper witness.
We’ve created this Client Will Signing Checklist document that we send to the client and ask them to complete during the Will signing and send back to us. Here is a link to the document.
Some firms are asking their clients to video the Will execution process in such a way that all three parties, the Will-maker and the two witnesses are visible. The client can send a copy of the video for the lawyer’s files. Of course, this is not required, but may put you more at ease when you see that they did it correctly.
The Affidavit of Execution can be prepared and sworn after the signing.
Once we are able to interact in person, we are recommending that our clients come in to re-sign their Wills at our office, just to be on the safe side.
Thank you for reading.
There’s a really good chance that if you live anywhere in the world that is not completely disconnected from the rest of society, you would have heard about COVID-19, and the fact that it has officially reached every single continent (except for Antarctica). The World Health Organization (WHO) has maintained that the containment of COVID-19 must be the top priority for all countries, given the impact it may have on public health, the economy and social and political issues.
Around 1 out of every 6 people who gets COVID-19 becomes seriously ill and develops difficulty breathing. Older people, and those with underlying medical problems like high blood pressure, heart problems or diabetes, are more likely to develop serious illness.
In a statement released on March 4, 2020, the WHO indicated “although COVID-19 presents an acute threat now, it is absolutely essential that countries do not lose this opportunity to strengthen their preparedness systems.”
The value of preparedness is being played out in a Seattle suburb, where COVID-19 has spread to a local nursing home, resulting in a quarantine of residents and staff. In the US, nursing homes are being criticized for being incubators of epidemics, with relaxed infection-control practices and low staffing rates, among other issues. Friends and family of residents in this Seattle facility are in an unenviable position, worrying about the health and safety of their loved ones and considering the gut-wrenching possibility that their loved ones might die alone. To read more about this issue, click here.
With the number of confirmed positive cases of COVID-19 on the rise in Ontario, I wonder how our long-term facilities are preparing to deal with an outbreak should one occur?
In the spirit of prevention, it is important to consider reducing the frequency of visits with our elderly loved ones, and spreading knowledge and information about hand-washing and other preventative measures.
For more information about COVID-19, click the links below:
Government of Ontario: https://www.ontario.ca/page/2019-novel-coronavirus
World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
Thanks for reading!
Medical Assistance in Dying: Breaking down Bill C-7 and the Federal Government’s Proposed Amendments
At the end of January, my colleague, Nick Esterbauer, posted a blog series on recent developments in medical assistance in dying (MAID), with a particular focus on the September, 2019 decision of the Quebec Superior Court of Justice.
In Truchon c Procuruer général du Canada, the court declared sections of the federal and Quebec laws on medically-assisted dying, unconstitutional. The court took specific concern with the Criminal Code requirement that a natural death be “reasonably foreseeable” in order to be eligible for assisted death.
As discussed in Nick’s previous blog, rather than appeal the decision, the federal government announced that it would be proposing legislative amendments.
Those proposals were introduced by way of Bill C-7 to the House of Commons on February 24, 2020. In order to provide for assisted deaths where a natural death is not “reasonably foreseeable,” the Bill proposes the following changes and framework:
- two independent practitioners must confirm that all eligibility criteria is met, and, one of the two practitioners must have expertise in the condition causing the patient’s suffering;
- the person must be informed of, and offered consultations on all counselling, mental health, and disability supports, including community services and palliative care available to them; and
- the two practitioners must agree that the person requesting MAID has “appropriately considered” their options.
The Bill also proposes the following changes:
- The written request (whether the death is reasonably foreseeable or not), need be witnessed by one, rather than two people, which would now (if the Bill is passed) include those directly involved in providing health care services or personal care to the person making the request (except for those health care workers who will be providing the medical assistance in dying to the person, or who have provided an opinion regarding the eligibility criteria);
- The reflection period, previously 10-days in length, will be removed in relation to cases where death is reasonably foreseeable. Where natural death is not reasonably foreseeable, the Bill proposes a 90-day period of assessment (which can be shortened if the person’s loss of capacity is deemed imminent);
- In cases where death is reasonably foreseeable, patients would be able to waive the requirement to consent immediately before the procedure, if consent is given in advance, the procedure has been scheduled, and the person is informed that they may not be able to provide consent at the time of the procedure. In cases where death is not reasonably foreseeable, those patients will still need to confirm consent in order to receive the procedure;
- The Bill also seeks to clarify the information pharmacists (and pharmacist technicians) have to provide when dispensing a substance for an assisted death, as well as to expand the data collected by medical practitioners, those responsible for preliminary assessments regarding the patients eligibility, and pharmacists/technicians.
Parliamentary review of the Bill is scheduled to occur in June of this year. More information on medical assistance in dying can be found on the Government of Canada’s webpage here. For a discussion on the possible impact MAID may have on a will challenge, click here.
Thanks for reading!
Other blogs that may be of interest:
Eighty percent of people with Parkinson’s develop dementia within 20 years of their diagnosis. In a recent article in Science Daily, I learned that researchers discovered that the genetic variant APOE4 spurs the spread of harmful clumps of Parkinson’s proteins through the brain. Findings suggest that therapies that target APOE might reduce the risk of dementia for people diagnosed with Parkinson’s disease.
In making the above-noted finding, scientists at Washington University School of Medicine in St. Louis, analyzed publicly available data from three separate sets of people with Parkinson’s. It was found that cognitive skills declined faster in people with APOE4 than those with APOE3. People with APOE2, showed no cognitive decline over the period of the study.
Although APOE does not affect the overall risk of developing Parkinson’s or how quickly movement symptoms worsen, an APOE-targeted therapy might stave off dementia, the researchers suggest.
We often blog on the issue of dementia as it affects many aspects of our practice as estate litigators. It is always encouraging to read about a positive study or breakthrough in the area of this debilitating disease.
To learn more about this study, please consider visiting here.
Thanks for reading.
Find this blog interesting? Please consider these other related posts:
This blog is the second and final blog in my series discussing estates-related topics in the film The Grand Budapest Hotel. While the first part focused on the application of forfeiture rules in the context of a testator’s murder, this blog specifically discusses the policy considerations that arise as a result of the further Last Will and Testament executed by one of the film’s characters, Madame D.
As a brief refresher, late in the film, a further Last Will and Testament executed by Madame D is discovered, the operation of which is only to be given effect in the event of Madame D’s death by murder. While the concept makes for an interesting twist in the film, in reality the purported condition precedent that the Will takes effect only upon death by murder likely means nothing in the context of Madame D’s estate planning.
Part I of Ontario’s Succession Law Reform Act specifically contemplates that a Will is revoked by, among other actions, the execution of a subsequent Will made in accordance with the provisions of that section. It is not made clear in the film which of Madame D’s two Wills were executed last. If the further Will was executed most recently and complied with all of the requirements of due execution, the prior Will would have been revoked and the second Will would likely prevail irrespective of the condition precedent.
Alternatively, a Will may also be revoked by a written direction of the testator to do so. Failure to expressly revoke a prior Will can potentially create problematic administration scenarios in which a testator may have believed, albeit mistakenly, that a prior Will had been revoked when in fact it had not.
While executing a Will in accordance with the provisions at Part I of the Succession Law Reform Act is sufficient in and of itself to revoke prior Wills, it is nonetheless prudent from an estate planning perspective to include a written intention to revoke prior Wills (provided, of course, the testator intends to do so).
Separately, even if we were to disregard the provisions of the Succession Law Reform Act, there would be a number of practical policy concerns if a Will whose effects were subject to a condition precedent. Notably, a reasonable debate could arise between beneficiaries in scenarios in which the cause of death is ultimately unclear.
The film suggests Madame D’s reason for executing a further Will to take effect on her murder is to ensure her nephew could not benefit from her demise at his hand. However, as discussed in Tuesday’s blog, that goal is accomplished by the operation of the slayer rule. Alternatively, Madame D could have relied on a common estate planning technique by making her nephew’s interest in her estate, rather than the Will in its entirety, subject to a condition precedent.
While Ontario prohibits conditions precedent that are deemed to be contrary to public policy, such as restraining marriage or promoting discriminatory behaviour, other conditions precedent are recognized at law. For example, Madame D could have simply made Dmitri’s interest contingent on his reaching a certain age, or reaching a certain milestone in his life, such as graduating from university. Instead, the purported condition precedent that the further Will was to take effect on her murder likely has no effect at all, provided the evidence shows it was executed after the initial Will and in compliance with the provisions of Part I of the Succession Law Reform Act.
Thanks for reading.
Recently, I experienced a series of coincidences involving American filmmaker Wes Anderson. In the span of a handful of days, I came across the newly-released trailer of his upcoming film, The French Dispatch, and had the opportunity to revisit his 2014 hit, The Grand Budapest Hotel.
Not having seen the latter in several years, I had entirely forgotten a key plot point involving a handful of curious estate planning decisions. Although the film was released six years ago, I nonetheless attach a mild spoiler warning.
The plot of the film revolves around a specific bequest of a work of art made by one of the characters in the film, Madame D. The painting, Boy with Apple, is left to Ralph Fiennes’ character, Gustave H, the proprietor of the film’s namesake hotel, per Madame D’s (purported) Last Will and Testament.
Her decision to leave the painting to Gustave, rather than her nephew, Dmitri, creates a firestorm of controversy, not least of all because Dmitri accuses Gustave of murdering his aunt in order to secure
his entitlement to Boy with Apple. In reality, it is strongly hinted in the film that Dmitri is responsible for her murder. As an additional twist, a further Last Will and Testament executed by Madame D is discovered later, which appears to leave the entire residue of her estate, rather than just Boy with Apple, to Gustave. However, it is stated in the film that this further Last Will is only to be given effect in the event that Madame D is murdered.
This single plot point raises a number of points of discussion and policy concerns as to what would transpire if the film were set in Ontario. This blog will explore the nature of Dmitri’s and Gustave’s potential entitlements in the Estate.
Prior blogs have explored the concept of common law forfeiture rules in Canada, which preclude an individual from deriving a benefit from their own morally culpable conduct. Colloquially known as the “slayer rule” in the context of a testator-beneficiary relationship, a beneficiary who is found to have caused the unlawful death of a testator will be deemed at common law to have predeceased the testator, thereby extinguishing any interest in the testator’s estate.
In the film, Dmitri accuses Gustave of the murder of Madame D. In the ordinary course, a conviction proper is not a necessary precondition to the applicability of the slayer rule. Rather, common law suggests that the rule applies strictly in the event that the beneficiary’s deliberate act caused the death of the testator. In theory, Gustave’s interest in the estate of Madame D could be in jeopardy despite the lack of culpability. In practice, despite his efforts to frame Gustave, the evidence would likely show that Dmitri was the culprit, thereby extinguishing any interest in Madame D’s estate.
Of course, the further Last Will purportedly being given effect only in the event a murder adds a further layer of discussion, and will be explored in greater detail in part 2 of this blog.
Thanks for reading.
This Sunday February 16, 2020 the NBA All-Star game will be played in Chicago. It is estimated that seven million people will watch that one game, and that about 450 million people are involved with basketball around the world annually. Forbes magazine has estimated the value of the 30 NBA teams at over 50 billion dollars with the Toronto Raptors valued at 1.7 billion.
On December 21, 1891 the game of basketball was invented by Canadian James Naismith. He was born on November 6, 1861 in Almonte Ontario about 50 kilometers west of Ottawa. Yet, the inventor of the game, James Naismith, never profited from any of this. In fact, he was generally in favour of advancing good values through sport and not profit. His estate did not profit either. However, his original two-page rules of the game of “Basket Ball” from 1891 were passed down to his family.
On December 10, 2010 the rules were purchased at Sotheby’s auction for a record 4.3 million dollars by David and Suzanne Booth. The couple then donated the original rules of the game of “Basket Ball” to the University of Kansas, where James Naismith had been director of athletics until retiring in 1937 at the age of 76. He died on November 28, 1939 at his home in Lawrence Kansas. The family heirs of James Naismith took the proceeds from the sale of the original rules and donated the money to the Naismith International Basketball Foundation charitable organization.
A notable legacy in a succession of events. The game of life played well, starting with James Naismith, then David and Suzanne Booth, and then the family and heirs of James Naismith!
Enjoy the game!