Category: Power of Attorney
Natalia Angelini recently blogged about some helpful tips from LawPRO on how to minimize the risk when virtually witnessing Wills and powers of attorney. On April 24, LawPRO posted another helpful article about the risks of “renting out” your signature as a virtual witness.
The emergency legislation requires that one of the witnesses to a Will that is executed by means of audio-visual communication technology (which now temporarily meets the Succession Law Reform Act, R.S.O. 1990, c. S.26 requirement that the testator and witnesses be “in the presence of” each other), be a Law Society licensee. This means that some of us may be asked to be witnesses to a Will or power of attorney that we did not prepare ourselves. However, as LawPRO points out, simply being a witness does not necessarily mean that we will not be held responsible if there are problems with the Will or power of attorney.
Some of the issues that may arise could include the following:
- Problems with the Will or power of attorney not being executed properly, in accordance with the requirements for due execution and the specific requirements of virtual execution pursuant to the temporary legislation.
- The Will or power of attorney not reflecting the testator or grantor’s wishes. This may arise if a testator or grantor prepares their own Will or power of attorney from an online service or kit, resulting in a document that is likely not tailored to the testator or grantor’s particular situation, financial circumstances, and wishes.
- Technical errors in the document, such as the omission of a residue clause, which can drastically impact the distribution of the testator’s assets.
LawPRO has provided some tips for how to protect yourself if you are asked to be a witness to a Will or power of attorney that you did not prepare (although the tips seem equally applicable if you did prepare the document in question):
- Take detailed notes.
- Send a reporting letter following the execution of the document and confirm the scope of your retainer.
- Record the signing (with the client’s permission).
You may also consider having the testator or grantor sign a limited retainer agreement, before you witness the Will or power of attorney, which explicitly sets out that you have been engaged only for the purpose of witnessing the document, and not to review it or provide any legal advice.
Thanks for reading, and stay safe!
These other blog posts may also be of interest:
Earlier this week, Ian Hull and I spoke at Osgoode Professional Development’s program on Powers of Attorney and Guardianship: Non-Contentious and Contentious Matters.
During the program, in addition to discussing new execution options for wills and powers of attorney, the panel shared its thoughts on a number of considerations relevant to the preparation of powers of attorney during the pandemic, including some of the following:
- It may now be impractical to permit for decisions regarding personal care or property to be made only jointly by two or more attorneys acting together where the attorneys selected are not members of the same household.
- In light of ongoing travel restrictions, it may be increasingly important that the selected attorney(s) for property and/or personal care are local.
- It may be more difficult to access multiple medical professionals (or a specified medical professional) to confirm incapacity during a healthcare crisis. The provision regarding the circumstances in which a power of attorney is to become effective should accommodate potentially limited access to a specified physician or more medical professionals than necessary.
- It may be more important than ever to ensure that the original power of attorney documents (and/or copies) are physically accessible to the named attorney(s).
- The current circumstances present a unique opportunity to assist clients in updating outdated plans and ensuring that powers of attorney are put into place for those who do not have them already.
Even outside of the context of a pandemic, considering practical issues like those set out above when creating or updating an incapacity plan is a worthwhile exercise and may expose potential problems with the plan before it is finalized.
Thank you for reading.
Other blog entries that may be of interest:
COVID-19 has prompted innovation and legislative updates in terms of the way that lawyers can assist our clients with estate and incapacity planning. A new tool created by a professor at my alma matter, Queen’s University, has recently emerged to supplement formal planning by making it easier for clients to create end-of-life treatment plans and to discuss their end-of-life wishes with their families and health care teams.
The Plan Well Guide is a free online tool that allows users to formulate a “Dear Doctor letter”, which can be provided to a physician for discussion and can be reviewed with family members (or otherwise an attorney or guardian of personal care) to ensure an understanding of the person’s wishes during a health crisis. The website also includes other information and resources relevant to end-of-life decision making.
I went through the process of creating an end-of-life plan using this resource and found it to be user-friendly and straightforward. Some highlights of the Plan Well Guide include the following:
- There are prompts that ask whether a user has a Power of Attorney for Personal Care and Will in place, which may act as a prompt to obtain a lawyer’s assistance if necessary.
- The website illustrates the user’s wishes, with examples to confirm the accuracy of the information that the user inputs. Where the illustration is not consistent with the user’s actual wishes, the user can go back to modify priorities to better reflect their wishes.
- Quizzes to ensure proper understanding of terms such as ICU treatment, comfort care, and the nature of resuscitation.
- There are prompts for both outstanding questions or issues for discussion with a healthcare provider and explanations of wishes to provide those reading the document with a better understanding of the user’s rationale behind their wishes.
Especially in the midst of the current pandemic, tools like this that make end-of-life planning more accessible, while having the potential to expose deficiencies in incapacity or estate planning and encouraging an open discussion of wishes in terms of medical treatment, can be helpful resources.
Thank you for reading.
Other blog posts that may be of interest:
The motions in Volk v. Volk, 2020 ONCA 256, arose from an appeal of an order to, inter alia, sell a property owned, in part, by Doris Volk, who is incapable of managing her own property, and to pay the net proceeds of sale to Doris’ husband, George. This case is instructive for how matters are currently proceeding before the Court of Appeal and in general for the scope of examinations under SDA matters.
George is not Doris’ attorney for property. The attorneys for property are Doris’ daughter, Darlene, and Doris’ sister, Lisa. George brought an application under the Substitute Decisions Act, 1992 because he claimed that the property was improperly transferred by the attorneys from Doris, as the sole owner, to Doris and Darlene’s daughter, Felicia, as tenants in common. At the time of the application, the property was registered with a 1% interest in Doris’ name and the rest was registered in Felicia’s name. Furthermore, the property was occupied by Darlene but George claimed that the carrying costs of the property were paid from Doris’ money in further breach of trust.
George’s application was granted on January 7, 2020 on the consent of Lisa. Darlene, Felicia, and the Public Guardian and Trustee did not appear or file opposing materials. The house was sold with a closing date of May 16, 2020.
Darlene and Felicia appeals the order of January 7th on ground that they were not properly served or provided with adequate notice of the application. They also brought a stay motion with a supporting affidavit from Felicia. Felicia was cross-examined on her affidavit and she refused a number of questions on the advice of her counsel. This led George to bring a refusals motion and an request for an adjournment of the motion for a stay pending appeal.
Both the refusals motion and the stay motion were scheduled to be heard before Justice Paciocco on April 14, 2020. Justice Paciocco noted that the agreement for purchase and sale gave the stay motion added urgency. The matter proceed on April 14th with counsel for Darlene and Felicia appearing by phone and counsel for George appearing by videoconference. George’s refusals motion was allowed in part. Justice Paciocco clarified that the proper scope of a cross-examination on an affidavit is governed by the issues that are relevant to motion. It includes questions that are relevant to credibility so long as it within the competence of the motions judge to determine (para. 10). He then goes on to give reasons for why certain categories of questions ought to be answered and why other categories were found to be irrelevant or unfair. Of note, questions about Doris’ state of mind were properly refused because it was unfair for Felicia to speak for Doris (para. 19).
Since counsel for George acknowledged that further examinations were not feasible as a result of COVID-19, Justice Paciocco ordered a timetable for answers and follow up questions in writing. The stay motion was adjourned to May 1st.
Thanks for reading and keep well.
One of the ways a Will can be declared invalid is if the court finds that there were suspicious circumstances surrounding the preparation of it. In Graham v. Graham, the Ontario Superior Court of Justice found that significant involvement from the testator/grantor’s child was indicative of suspicious circumstances regarding the preparation of a Will and Power of Attorney (POA).
The testator, Jackie, had four children: Tim, Robert, Christine and Steven.
Jackie suffered from terminal cancer. She was hospitalized from November 22, 2015 to December 7, 2015, and again from December 22, 2015 to December 24, 2015, to receive treatment for severe pain.
In mid-December 2015, Robert’s wife, Tammy, searched for and contacted a lawyer to prepare a Will and POA for Jackie. Tammy obtained a Client Information Sheet (CIS) from the lawyer’s office and completed it herself. The lawyer prepared the documents based on this CIS. At Robert’s request, the lawyer went to the hospital to meet Jackie and have her sign the Will and POA. This was the first time Jackie met the lawyer and saw the Will and POA.
Jackie’s Will named Robert as estate trustee and sole beneficiary of her estate. The POA named Robert as Jackie’s sole attorney for property. Robert’s wife, Tammy, was named as the alternate estate trustee and attorney.
On January 4, 2018, Robert used the POA to transfer Jackie’s house to himself as sole owner. Four days later, Jackie died of cancer.
Tim challenged the validity of Jackie’s Will and POA claiming that they were prepared under suspicious circumstances and that Jackie was subject to undue influence by Robert and Tammy.
- Jackie had been in ill health for a long time prior to her death, so it was reasonable to infer she had chosen to die without a will, until Robert’s involvement.
- Jackie was treated with heavy painkillers on the night and morning of the day she signed the will and POA.
- Robert and Tammy “orchestrated virtually every aspect of the Will and the POA”, which included searching for a lawyer, providing instructions, arranging for the lawyer to meet Jackie, remaining in Jackie’s room for part of the meeting, and taking part in the discussions concerning the Will and POA.
- The drafting lawyer relied entirely on Robert and Tammy to provide him with all of the information concerning the Will and POA.
After finding that suspicious circumstances existed, the burden then shifted to Robert to prove that Jackie had testamentary capacity and that she knew and approved of the contents of the Will and POA. Using the test for testamentary capacity as outlined in Banks v. Goodfellow (1870), the court found that Robert could not establish that Jackie had testamentary capacity. In coming to this conclusion, the court considered the following:
- There was no evidence that Jackie was given the Will or the POA to read or that it was read to her.
- Although Jackie knew where she was living, there was no evidence to indicate that she had any knowledge or understanding of the monetary value of her house.
- It was unclear whether Jackie could do more than repeat what she was told.
- Jackie was confused and/or mistaken in certain beliefs about her son, Tim.
- The medications that Jackie was taking for her pain left her confused and drowsy.
As a result, the Will and the POA were declared invalid.
Graham v. Graham serves as a cautionary tale for adult children who become too involved in the drafting of their parents Wills and POAs. It warns us that the courts view this type of involvement as suspicious. Moreover, Graham v. Graham suggests that physical impairment can impact a testator’s mental state, thus making them vulnerable.
Thanks for reading!
Ian Hull and Celine Dookie
No, we are not referring to the 1979 film featuring Dustin Hoffman and Meryl Streep, but a far more recent (but nonetheless interesting) legal dispute involving an application to pass accounts, suspicious activity on behalf of an Attorney for Property, and the resurgence of the equitable defences of laches and acquiescence.
A complex series of facts is present in the Estate of Ronald Alfred Craymer v. Hayward et al, 2019 ONSC 4600: two Attorneys for Property, six marriages, seven children, thirty years of estrangement between Ronald and his four children, and virtually no financial records for the period during which the first Attorney for Property oversaw the affairs of her incapable husband’s estate.
The cruxes of the dispute are that the first Attorney for Property (Joan, Ronald’s wife) transferred the title of the matrimonial home to herself, she kept scanty financial records, and the value of her assets (over $1 million) dwarfed that of her late husband’s (around $35,000). When Joan died suddenly, John Craymer (Ronald’s son, the plaintiff) applied for a passing of accounts and the second Attorney for Property (Linda, Joan’s daughter) was left in the unenviable position of potentially having to answer for the conduct of her late mother in relation to accounts of which she, Linda, had no knowledge.
Under section 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, the Court may order a passing of accounts. In considering whether to do so, it should examine “the extent of the attorney’s involvement in the grantor’s financial affairs and second whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs” (McAllister Estate v. Hudgin, 42 E.T.R. (3d) 313 (ONSC), at para 13). Since section 42 carries a high threshold, and Linda was not responsible for her mother’s conduct, the Court did not grant the application. In its reasons, moreover, the Court found fault with the transfer of the home, but given the marital relationship between grantor and attorney, it did not attach much weight to the scantiness of detailed accounts.
Noteworthy in this case is the Court’s consideration of the equitable doctrines of laches and acquiescence in the context of a motion for a passing of accounts (in which, in Ontario, there is no limitation period). In determining whether these defences apply, the Court looks at the length of the delay and the resulting prejudice. Neither of these components were applicable here, for when John learned of the value of his father’s estate as well as the transfer of the home into Joan’s name, he acted promptly. Instead, his application was dismissed on the Court’s discretion.
Thank you for reading.
Ian Hull & Devin McMurtry
Previously, Hull and Hull LLP blogged on the decision of Tarantino v. Galvano, 2017 ONSC 3535 (CanLII). After a ten day trial, the court set aside a transaction whereby the deceased’s daughter, acting as attorney under a Power of Attorney, transferred the deceased’s interest in her home to the daughter. The court also allowed a claim by the daughter for services provided to the deceased. The court disallowed a claim for occupation rent against the daughter.
We also blogged on the costs decision, reported at Tarantino v. Galvano, 2017 ONSC 6635 (CanLII). The collective legal fees of the parties on a substantial indemnity basis (ie., the actual legal fees were higher) were $621,660. The main asset of the estate was 80% of a house valued at $680,000 in 2012. Neither party was awarded costs, other than a reimbursement for the cost of an expert report.
The matter was before the courts once again. On September 6, 2019, the Ontario Court of Appeal dismissed the appeal brought by the grandchildren of the deceased (the daughter’s nieces): Tarantino v. Galvano, 2019 ONCA 699 (CanLII).
The Court of Appeal held that with respect to the dismissal of the claim for occupation rent, the trial judge did not err. The daughter remained in the house (of which she owned 20%) after death. However, the granddaughters had sought and obtained an undertaking from the daughter not to sell the house while the litigation was pending. Of note is the fact that the daughter, under the deceased’s will, had a first option to purchase the house. As the daughter was prevented from selling the house by reason of the undertaking sought by the granddaughters, it would be “unfair” to charge the daughter rent when she was unable to deal with the house.
With respect to a second ground of appeal, the Court agreed with the trial judge that the costs of maintaining the home during the deceased’s lifetime, and while she was in poor health, should fall on the deceased. As the trial judge concluded, “Having accepted that [the deceased’s] wish was to be looked after at home, and having accepted that in her capacity as attorney for personal care it was appropriate for [the daughter] to make arrangements for [the deceased] to be looked after in the home, those expenses are properly attributable to the care of [the deceased].”
The appeal was dismissed, with costs of $15,000 payable by the granddaughters to the daughter.
I expect that this is the last chapter in this unfortunate, expensive saga.
Thank you for reading.
In dependant support cases, the court shall consider many factors and circumstances in determining the amount and duration of support, pursuant to a non-exhaustive list detailed in section 62 of the Succession Law Reform Act. If the dependant is a spouse, the considerations also include a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship. In Webb v. Belway, we see this consideration taking center stage.
The deceased, Mr. Belway, suffered a stroke. He died approximately six months later at age 82. In the months prior to his passing, Mr. Belway was in the hospital and in long-term care. Ms. Webb assisted in in his care, and was acting as Mr. Belway’s attorney for property and personal care.
Mr. Belway died intestate. He was survived by his daughter, who stood to inherit the entire estate of almost $3.0 million. He was also survived by his long-time common-law spouse, Ms. Webb, age 73. Ms. Webb brought a dependant support claim seeking half of the estate.
Mr. Belway’s daughter opposed the application, arguing that due to Ms. Webb’s abhorrent behaviour she should not be entitled to any assets from the estate. Such behaviour included:
- Webb, acting as attorney for property, transferring more than $570,000 from Mr. Belway’s accounts for her own benefit, when Mr. Belway was hospitalized and incapable;
- Webb did not call Mr. Belway’s daughter to advise of her father’s stroke, of his hospitalization or of his having undergone surgery. She further refused to provide a phone number to reach Mr. Belway; and
- Webb took active steps to isolate Mr. Belway during his final months of life, including instructing caregivers to call the police should his daughter and family members attempt to visit.
The court ultimately found that Ms. Webb’s actions were “improper” but that all things considered she should still receive support, stating:
“Ultimately, I am not persuaded that Ms. Webb’s actions were egregious or malicious, nor do I find her actions to have been so unconscionable as to constitute an obvious and gross repudiation of the relationship.
Moreover, after being a common law couple for at least 18 years, though Ms. Webb’s actions are problematic, I do not find they negate her moral and economic claims against the estate.”
This decision suggests that one may need a greater strength and breadth of evidence to establish a course of conduct sufficient to repudiate the relationship, particularly in a long-term spousal relationship that substantially appears to be fairly typical (at least, in this case, until the pivotal health crisis late in life).
Thanks for reading,
The recent Ontario Court of Appeal decision in Dzelme v Dzelme acts as a helpful reminder that even if an attorney has standing to seek a passing of accounts, the Court may still refuse to grant the passing.
John was named as the attorney for personal care for his father, Ritvers, and sought an accounting of Ritver’s financial affairs from his brother Arnis (Ritvers’ other son) who was the attorney for property. Both John and Arnis agreed that John, given that he was an attorney for personal care, could apply under section 42(4)(1) of the Substitute Decisions Act for a passing of accounts without leave. Nonetheless, the Court of Appeal identified that even if a person has standing to apply for an accounting, it remains the discretion of the Court to order a passing of accounts.
In deciding whether to order the passing, the superior court judge made the following findings of fact: (i) both the father and mother were capable when they executed written instructions to Arnis not to produce any financial information about his affairs to John; (ii) the mother maintained this position in response to John’s motion; (iii) a capacity assessment found that the mother was capable of making her own decisions; (iv) a third brother corroborated Arnis’ evidence that he was abiding by his parent’s wishes; (v) the application judge did not doubt that Arnis was following his mother’s wishes; and, (vi) there was no reason to suspect that Arnis was acting improperly with respect to certain transactions.
On this basis, the Court of Appeal upheld the application judge’s dismissal of John’s request for an order that Arnis pass his accounts of Ritver’s property.
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The city of Toronto was abuzz this past weekend as we kicked off summer 2019 with wall-to-wall sunshine. There were so many wonderful things to celebrate this weekend. For some, celebrations continued over the Toronto Raptor’s historic NBA Championship win. Some were tapping their feet to the beat for the first weekend of Toronto’s Jazz festival. Others, like myself, were flooding the streets to celebrate one of the city’s largest, loudest, and most colourful parades of the year – the Toronto Pride Parade.
Pride festivities provide a great opportunity to come together with others to celebrate and promote the equal rights of all persons regardless of gender or sexual orientation. While there, I reflected on some key considerations for LGBTQ+ individuals to consider in the context of estate planning in Ontario.
1. The value of a will
A will is an invaluable tool to assist people in planning for the future. The Succession Law Reform Act, RSO 1990, c. 26 (“SLRA”) gives individuals the power to dispose of property post-death.
Provided that your will meets the statutory requirements to be valid (which are prescribed in Part I of the SLRA) testators are free to dispose of their property as they wish. This a right regardless of sexual orientation or gender and includes couples that are in common-law relationships and same-sex marriages.
Importantly, the will provides a testator with a level of control over how children are provided for post-death. This is especially important in scenarios where parents rely on assisted reproduction as a method of conceiving a child. Having a will allows a testator to specifically name children and outline how that child is to take under the will. For more information about this, click here.
2. Rules of Intestacy
If you die without leaving a will, your estate will be subject to the rules of intestacy which are governed by Part II of the SLRA. Under these rules, married couples are entitled to take their spouses property absolutely if the deceased is not survived by issue. On July 20, 2005 the Parliament of Canada enacted the Civil Marriage Act, which legalizes same-sex marriage and provides in section 2, that, “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others”. This definition replaced the former definition which described marriage as the lawful union between a man and a woman. As a result, same-sex spouses are entitled to take from their spouses estate on an intestacy.
In contrast, common-law relationships do not share this privilege, regardless of whether it is a heterosexual or homosexual common-law relationship.
3. Incapacity During Lifetime
An important consideration for LGBTQ+ individuals is also what would happen in the event that they become incapable of making decisions regarding their health care and property. Although laws vary by jurisdiction, legal and biological family, such as spouses (sometimes including common-law partners), children and parents, will generally be favoured over other persons who may have a close but legally unrecognized, relationship with the incapable person. This could have a negative impact on an individual whose non-accepting family members step into a decision-making role for them.
4. Dependant Support Claim
If you fall under the definition of a “dependant” under Part V of the SLRA, which could apply to same-sex common-law relationships and spouses alike, you may be entitled to make a dependant’s support claim against your partner’s estate.
Thank you for reading!