Category: News & Events

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

09 Jan

Saskatchewan’s New Adoption Regulations

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

On January 1, 2017, the Government of Saskatchewan implemented changes governing the release of adult adoptees birth registration, and access to birth registration information.

Old Regulation

In Saskatchewan, prior to the adoption of the new regulations, adult adoptees required the consent of a birth parent in order to find out their birth name, the name and location of the hospital where they were born, and the name of their biological parents. The requirement of consent was very burdensome on adult adoptees who had to go through the Saskatchewan Government, specifically the Post-Adoption Services branch, in order to track down their biological parents. Locating biological parents and obtaining consent would result in average wait times of approximately three years.

New Regulation

Those eligible to apply for the newly implemented Post-Adoption Services regulations, if the adoption was finalized in Saskatchewan, are:stocksnap_dca2ae8fa9

  • an adult adoptee (18+ years of age);
  • an adoptive parent of an adoptee who is under 18;
  • a birth parent of an adoptee;
  • the adult child of a deceased adult adoptee;
  • the adult child of a deceased birth parent whose child was placed for adoption; or
  • an extended family member of an adult adoptee or birth parent.

With the new regulation, adult adoptees no longer require consent from both parties to access birth registration information. The information is readily available to individuals who file a request. With the current regulation, the wait time for information is expected to be a few weeks.

From January 1, 2016 to January 1, 2017, both adoptees and birth parents had the option to veto the release of their birth registration information, specifically the biological names. There was no option to veto the name of the birth hospital or location. According to an article by CBC News, some 84 vetoes have so far been registered by birth parents, and “significantly fewer” by adult adoptees. Vetoes can only be placed on adoptions that occurred prior to January 1, 2017. Therefore, adoptions after January 1, 2017 must be subject to the new regulations.

The Government of Saskatchewan Post-Adoption Services website offers online forms requiring documentation such as a birth certificate, drivers licence and Order of Adoption. Further documentation will be required if the individual is an adult child of a deceased adult adoptee, or the adult child of a deceased birth parent whose child was placed for adoption. Furthermore, the application allows the searching party to specify their preferred method of contact.

From an estate planning perspective, it is interesting to consider that these revisions will, in certain circumstances, cause adoptees to be named as beneficiaries in the will of their biological parents.

Thanks for reading,

Ian M. Hull

Other Articles You May be Interested In

Adult Adoptions

The Issue of Parental Recognition

Estate Litigation for the Living

03 Jan

Hull on Estates #500 – Law of Unjust Enrichment

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, News & Events, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , 0 Comments

This week, in the 500th episode of Hull on Estates, Paul Trudelle and Nick Esterbauer discuss the recent Court of Appeal decision of Granger v Granger and the law of unjust enrichment.

 Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

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27 Dec

Hull on Estates #499 – Top 5 Blogs of 2016

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estates, In the News, News & Events, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, Uncategorized Tags: , , , , , 0 Comments

Today on Hull on Estates, Jonathon Kappy and Noah Weisberg discuss the top 5 blogs of 2016.

Please find the links below:

Are Embryos Entitled To An Inheritance?

Is Discrimination A Restriction On Testamentary Freedom?

Inter Vivos Transfers, Undue Influence and Independent Legal Advice

Who Has The Authority To Make Funeral And Burial Arrangements Intestacy?

Assisted Dying – Only The Beginning?

 Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Jonathon Kappy.

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19 Dec

Will the SCC Expand the Scope of Proprietary Estoppel?

Ian Hull Estate & Trust, Estate Planning, Executors and Trustees, General Interest, In the News, Litigation, News & Events, Trustees, Uncategorized, Wills Tags: , , , , , , 0 Comments

Last week, we discussed Cowper-Smith v Morgan, and considered when the presumption of undue influence is rebutted by legal advice. Today, we discuss the availability of the doctrine of proprietary estoppel in the circumstances of this case (the issue which the Supreme Court of Canada (“SCC”) has granted leave to hear on appeal from the British Columbia Court of Appeal (“BCCA”)).

Brief Recap
The trial decision found that the son of the deceased, Max, had relied to his detriment on a promise made by his sister Gloria.  Gloria had enticed Max to return from England to care for his ailing mother in her home by entering into an agreement to, among other things, sell Max her 1/3 interest in the home that she would inherit on her mother’s death. On the mother’s death, Gloria reneged. The trial judge, on the basis of proprietary estoppel, directed that Max was entitled to buy Gloria’s share of the property.

The BCCA decision (Smith J. dissenting on the proprietary estoppel finding), found that Max had not met the test in order to apply the doctrine. In short, the BCCA found that the remedy of proprietary estoppel could not arise as a result of assurances given by Gloria (a non-owner) with respect to her future intentions.

It is the question of whether the doctrine of proprietary estoppel applies in these circumstances that wil02FAEBOQ2Gl be considered by the SCC.

The full facts of the case can be found in last week’s blog.

The Availability of Proprietary Estoppel
The BCCA applied the elements of the modern doctrine of proprietary estoppel as (in para 73 of the decision):

  1. an assurance or representation by the defendant that leads the claimant to form a mistaken assumption or misapprehension that he or she has an interest in the property at issue;
  2. a causative connection between the assurance or representation and the claimant’s reliance on the assumption such that the claimant changes his or her course of conduct;
  3. a detriment suffered by the claimant that flows from his or her reliance on the assumption, which causes the unfairness and underpins the proprietary estoppel; and
  4. a sufficient property right held by the defendant that could be transferred to satisfy the right claimed by the claimant.

In Ontario, the modern approach was established in the case of Schwark v Cutting, 2010 ONCA 61. Three factors must be present for proprietary estoppel:

  1. the owner of the land induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit over the property;
  2. in reliance upon this belief, the claimant acts to his detriment to the knowledge of the owner; and
  3. the owner then seeks to take unconscionable advantage of the claimant by denying him the right or benefit which he expected to receive.

The Matter for Debate
The BCCA found, in a 2-1 decision, that the doctrine of proprietary estoppel did not apply. The BCCA found that the trial court unreasonably expanded the scope of the doctrine by finding that Max could rely on Gloria’s assurance that he could buy her 1/3 interest in the property.

The majority found that Gloria’s assurance did not equate to unconscionable conduct: her obligations arose solely based on her mother’s actions and death and, as such, Max never had a proper basis to rely on Gloria’s promise: the property was not hers to give away at the time the assurance was made.

The dissenting opinion of Justice Smith proposed a solution to this dilemma by noting that, because of her cognitive deterioration, there was no possibility that the mother would have changed or rescinded the transactions that conveyed the property to Gloria on her death.  As such, “Gloria’s ownership of the Property by the right of survivorship and the Declaration of Trust was therefore certain, despite not actually being owned by Gloria at the time of the promise to Max.”

It will be interesting to see how the SCC approaches this issue.

Thanks for reading,

Ian M. Hull

Other Articles You Might Enjoy

A Primer on Proprietary Estoppel

Proprietary Estoppel Revisited: Cowderoy v. Sorkos Estate

Proprietary Estoppel – A Court Enforced Promise

12 Dec

Undue Influence and Legal Advice

Ian Hull Capacity, Estate & Trust, Estate Planning, Ethical Issues, General Interest, In the News, Litigation, News & Events, Public Policy, Uncategorized, Wills Tags: , , , , , , 0 Comments

A successful application for leave to appeal to the Supreme Court of Canada (“SCC”) is an uncommon occurrence. It is therefore of considerable interest to the estates bar that leave to appeal from a decision of the British Columbia Court of Appeal (“BCCA”) has been granted in the case of Cowper-Smith v. Morgan.

The case touches on important aspects of both undue influence and proprietary estoppel. It was in respect of the BCCA’s decision finding against the availability of proprietary estoppel as a remedy that leave was granted and we will all eagerly await the pronouncement of the SCC in due course.  While the issue of proprietary estoppel in the case will be the subject of next week’s blog, the analysis of the BCCA as it relates to undue influence makes for interesting reading.

Facts
Elizabeth Cowper-Smith had three children, a daughter, Gloria, and two sons, Max and Nathan.

2001 – Upon obtaining legal advice, Elizabeth transferred her home and investments into joint tenancy with Gloria and executed a Declaration of Trust providing for Gloria to receive the assets “absolutely” upon her death. This transfer left her estate devoid of any significant assets.

2002 – Notwithstanding the Declaration of Trust, Elizabeth executed a Will leaving 1/3 of her estate to each of her children.

2007 – Gloria asked Max to return home from England in order to care for Elizabeth. Gloria offered Max the right to purchase a 1/3 interest in the home as an incentive.

Gloria reassured her brothers that the property transfer into joint tenancy with her was done simply to help manage the mother’s affairs. Upon Elizabetht9f0c0c9cf’s death, however, Gloria said the transferred assets were hers.

British Columbia Superior Court Decision (2015 BCSC 1170)
Max and Nathan brought an action against Gloria alleging that Gloria exerted undue influence on Elizabeth. Max also sought a declaration that, on the basis of proprietary estoppel, he was entitled to purchase Gloria’s 1/3 interest in the house. At trial, the judge found that Gloria’s true intentions were located in her 2002 will.

British Columbia Court of Appeal Decision (2016 BCCA 200)
Gloria submitted on appeal that independent legal advice provided to Elizabeth was adequate to rebut the undue influence.

The appeal was allowed in part. The legal advice given to Elizabeth was inadequate to rebut the presumption of undue influence; however, Max did not acquire a right to purchase Gloria’s 1/3 share by promissory estoppel (again, the SCC has granted leave to appeal this latter finding).

Issue 1: Undue Influence
The trial judge, upheld by the BCCA, ruled in favour of Max and Nathan, and set held that the property was impressed with a trust for the benefit of the estate: the presumption of Gloria’s undue influence was not rebutted. This is an interesting finding, as Elizabeth obtained her own legal advice prior to executing the transfers to Gloria. Independent legal advice can be used to rebut presumptions of undue influence, if the independent legal advice qualifies as “informed advice”.

In applying Geffen v Goodman Estate, [1991] 2 SCR 353, the trial judge found a potential for domination inherent in the relationship between Gloria and Elizabeth, that gave rise to the presumption of undue influence.

The test for Gloria to rebut the presumption of undue influence was established in Geffen:

  1. An “examination of the nature of the transaction[s]”;
  2. A finding of whether the donor entered into the transactions as a result of her “own full free and informed thought”; and
  3. A “meticulous examination of the facts.”

The BCCA agreed with the trial judge’s conclusion that, based on this test, Gloria was not able to rebut the presumption of undue influence. Despite the fact that Elizabeth went to two lawyers, the court found that Gloria and her husband had advised the lawyers that Max and Nathan were trying to take Elizabeth’s property. Moreover, Gloria was present at some of the meetings with the lawyers. Lastly, the lawyers relied on the false information from Gloria and failed to adequately provide “informed advice” and otherwise probe for the existence of undue influence.

Thanks for reading,

Ian M. Hull

Other Articles You Might Enjoy:

Undue Influence Revisted

The High Hurdle of Undue Influence

Sufficiency of Independent Legal Advice

05 Dec

News Hoax Prompts Interesting Estate Planning Questions

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

With the unfortunate increase in fake news stories circulating the internet, one particular fabricated story nonetheless raises important estate planning considerations.

True: Mr. Antonino Fernandez died in August 2016. Mr. Fernandez was the owner of Corona beer, and chairman of Grupo Modelo, which also exports Modelo, and other Mexican beers. Mr. Fernandez was a philanthropist who set up establishments to encourage rural development in his birth area, as well as charitable foundations in both Mexico and Spain to ensure employment opportunities for disabled individuals.

False: In his will, Mr. Fernandez left every resident in his birth village, Cerezales del Condado in Spain, 2.5 million dollars.

A recent news hoax about the late Mr. Fernandez leaving a generous gift to each of the residents in his birth village raises the question whether such a testamentary disposition would have been valid.

Who Would Get a Distribution?

According to the fabricated story, Mr. Fernandez gave each resident of his village 2.5 million dollars upon his death pursuant to a clause in his testamentary document that apparently stated “for the benefit of the village`s inhabitants“. His village had 77 residents.

In Mr. Fernandez’s purported will, he left his fortune to his 13 siblings and extended family. Each villager did not directly get a distribution. If the disposition to the villagers did exist, would the siblings be obligated to distribute the estate based on the foregoing provision?stocksnap_aawg5oao53

Would the Will Be Void for Uncertainty?

While each villager would have been informed that they were to receive a distribution from Mr. Fernandez, due to the drafting of the will, it is unclear if they would have received a distribution.

To prevent the villagers from recovering their distribution, the siblings would want to argue that the term in the will benefiting the villagers was void for uncertainty. As such a will would be ambiguous, the parties may need to look to a Judge to help interpret the will.

Pursuant to the decision of the Ontario Court of Appeal in Re Burke [1959] OJ No 706, the judge must study the whole contents of the will, and after full consideration of all the provisions and language used therein, try to find what the intention was in the mind of the testator. When an opinion has been formed as to the intention of the testator, the court should strive to give effect to it.

As established in Montreal Trust Co. v Sinclair (1958 CarswellMan 39) “one of the commonest forms of uncertainty in this respect is where the gift provides for selection from a number of persons or bodies and does not state who is to make the selection or how it is to be made.“ In the false case of Mr. Fernandez, it may be argued that while he left a gift to the inhabitants of his village in his will, he did not specifically state how a villager was to be defined.

Furthermore, the Supreme Court of Canada in Brewer v McCauley [1954] SCR 645 established that “a testator must, by the terms of his will, himself dispose of the property with which the will proposes to deal. He may not depute that duty to his executors or trustees“ In this case, the siblings of Mr. Fernandez could also attempt to argue that Mr. Fernandez left an unclear condition on the gift to them, and that leaving the distribution of the gift to the villagers to his siblings was an improper delegation of testamentary authority.

Thanks for reading,

Ian M. Hull

Other Articles You Might Be Interested In

The Validity of an Inter Vivos Gift

Unconventional Gifts

“Prrecioussss” Gifts – Estate Law and The Hobbit

23 Nov

Advertising for Creditors – Does the Standard Practice Need an Update?

Suzana Popovic-Montag Estate & Trust, Estate Planning, Executors and Trustees, General Interest, In the News, New Media Observations, News & Events, Trustees Tags: , , , , , 0 Comments

An estate trustee must ensure that the deceased’s debts have been discharged prior to making any distributions. This is usually done by advertising for creditors in a newspaper. With today’s emphasis on technology, however, is advertising in a newspaper still the most efficient way to reach potential creditors?

The Standard Practice

An estate trustee will usually not be personally responsible for paying the deceased’s debts, as debts are paid from estate assets. The estate trustee may be found personally responsible for debts, however, if they begin to distribute the estate prior to paying the deceased’s debts.

Updating standard practice.
“An estate trustee will usually not be personally responsible for paying the deceased’s debts, as debts are paid from estate assets.”

An estate trustee may avoid personal liability for failing to pay a debt of the estate if they advertise for creditors.  Section 53(1) of the Trustee Act provides personal protection for an estate trustee who advertises for creditors prior to distributing the estate assets.

The standard practice for advertising for creditors is to advertise in a newspaper three consecutive weeks in a location where the deceased lived and worked, and then wait at least one month from when the advertisement was first published to begin administration of the estate. The newspaper publisher will then usually send an Affidavit certifying that the estate trustee has properly provided notice to creditors. The Affidavit can be filed with the court as proof that the estate trustee has taken the proper precautions to advertise for creditors.

Does the Standard Practice Need an Update?

While the newspaper may be the most common means of advertising for creditors, is it the most efficient way to reach a creditor?

It is worth considering advertising for creditors online. Advertising through an online service may be more cost effective than in a newspaper. We have previously blogged on a service that provides online advertisements for creditors, and provides affidavits in support of the estate trustee’s advertisement. Using a service to publish notice to creditors has the potential to reach a larger majority of individuals, in a more cost-effective manner. Furthermore, the internet has the ability to provide information to creditors that may be located outside of the deceased’s jurisdiction, allowing for the advertisement to reach more individuals as compared to a newspaper advertisement that is generally confined to one jurisdiction.

As the Trustee Act does not specify the proper form of advertising for creditors, there is the potential for online services or cellphone applications to provide advertisements for creditors in a more efficient and effective way.

Thanks for reading,

Suzana Popovic-Montag

 

Other Articles you Might be Interested In

Show Me the Creditor

Can You Inherit Debt?

The Rising Age of Debt

09 Nov

The Benefits of Specific Bequests and Memoranda

Suzana Popovic-Montag Beneficiary Designations, Estate & Trust, Estate Planning, Executors and Trustees, General Interest, In the News, Litigation, News & Events, Public Policy, Trustees, Wills Tags: , , , , , , , , , 0 Comments

Dividing one’s personal property upon death can be a contentious matter. If an item of personal property is not specifically gifted to an individual, there is a chance that the beneficiaries may find themselves litigating.

A specific bequest can provide clarity. Pursuant to Black’s Law Dictionary, a specific bequest is “a legacy of a specified property or chattel to a particular person that is detailed in a will.” We have previously blogged on the use of specific bequests.

Art could be concidered under specific bequests
Pursuant to Black’s Law Dictionary, a specific bequest is “a legacy of a specified property or chattel to a particular person that is detailed in a will.”

Another way to give personal property is through the use of a memorandum attached to the will. This memorandum may be updated to list all of the personal property being gifted, and can either be binding (assuming certain requirements are met) or precatory. We have previously blogged on the use of a memorandum to give personal property.

The use of a specific bequest or a memorandum may help to avoid battles over personal property. If personal property is not given to an individual through a specific bequest, an individual may receive items through a percentage division of either such property (e.g. “to be equally split between my two sons”), or the residue.

One possible issue with giving a percentage division of property or leaving residue to the beneficiaries, is that they may fight over specific items. This is what is happening with the Estate of Audrey Hepburn. In Audrey Hepburn’s will, she left a storage locker as part of the inheritance for her two sons. The locker was filled with various items including fashion accessories, posters, awards, scripts, and pictures, and was to be shared equally. Her two sons are now in dispute over who gets to keep what items in the locker.  If Hepburn were to have specified the items to be given, it is possible that this inheritance dispute could have been avoided.

While specific bequests and memoranda are helpful in certain circumstances, it is important to consider the potential value of the bequest before gifting it. Valuations are important in order to ensure that the property being gifted is truly representative of the testator’s intention in leaving the property. For example, an individual may decide to leave each of her sons a separate painting. Without a valuation, this seems like an equitable arrangement. With a valuation, however, it may be that one painting is worth $300.00, and the other is worth $3,000.00. Equalizing the value of personal property may be an important consideration in making a specific bequest in order to avoid potential litigation.

Thanks for reading,

Suzana Popovic-Montag

08 Nov

Hull on Estates #492 – Legal Reform in Family and Estates Law

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estates, News & Events, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , 0 Comments

This week on Hull on Estates, David Smith and Doreen So discuss legal reform in family and estates law and the contributions of our senior counsel, Roy McMurtry.

Legal reform in family and estates law
“In the 1970’s the biggest human rights concern for the Chief in the context of family law was that; children born outside of marriage didn’t have the same legal rights as children who were born in the context of a marriage.” – Doreen So

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

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