Lewis v. Lewis is a recent Ontario Court of Appeal decision in which the Appellants challenged the dismissal of their Application from the Superior Court of Justice. At issue was whether the Appellants’ mother, Marie Lewis, had the requisite capacity to execute new powers of attorney for property and personal care. The Appellants sought to invalidate the new powers of attorney and bring back into effect prior powers of attorney which Mrs. Lewis executed in 1995.
The Appellants raised several issues on appeal. In essence, they took issue with the application judge’s assessment of the evidence and exercise of his case management discretion.
In dismissing the appeal, the Ontario Court of Appeal emphasized the following principles regarding capacity:
- Since capacity is presumed, those objecting to the document(s) have the onus to rebut that presumption, with clear evidence, on a balance of probabilities.
- Similarly, those raising the issue of suspicious circumstances and undue influence bear the onus of establishing it, on a balance of probabilities.
- The fact that someone had various chronic medical conditions throughout their life does not automatically mean that they lacked capacity. It is open to the application judge to consider the evidence. In doing so, the application judge may reject any evidence that they find to be unreliable.
- Without evidence to the contrary, it is reasonable for an application judge to take “solace” from the fact that the individual executed their new powers of attorney before their solicitor of many years.
- It is reasonable for an application judge to refer to the statements of section 3 counsel, appointed by the Office of the Public Guardian and Trustee, concerning an individual’s expressed wishes.
Good things to keep in mind when dealing with capacity issues.
Thanks for reading … Have a great day!
Suzana Popovic-Montag and Celine Dookie
Some basic questions to get you thinking about starting a will with a surviving spouse scenario:
- Everything to spouse Absolute (no strings attached)?
- Some or all assets held in a Spousal Trust (some conditions will apply) ?
- An amount immediately to children with the balance to the spouse Absolute?
For lawyers – the Hull e-State Planner is a tool for making wills and has been called “the future of will planning”. To book your free demo today email to firstname.lastname@example.org
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The book “The Beautiful Ones” was released last week in Canada. Part memoir (until his teenage years) and part biography, the book provides some insights into the life of one of the most influential musicians of our time. “Prince” Rogers Nelson, a multi-talented singer-songwriter died on April 21, 2016 at the age of 57 from an accidental fentanyl overdose at his estate outside Minneapolis. He died without a will.
The Minnesota Star Tribune reported about two weeks later, on May 8, 2016 that: “Suddenly, wills and estates are a topic everyone wants to learn about.” And “They are talking about it at the family barbecue, the Rotary Club, and the Anoka Area Chamber of Commerce”.
According to several surveys, approximately 65% of Canadians do not have an “up to date” will. “Make a Will Month” encourages Canadians to make or update their wills. Doing so can save a lot of expense, delay, and conflict in the future. A proper will and estate plan means reducing or eliminating problems that arise when a person dies intestate (without a valid will). It has been reported that three years after his death Prince’s estate is still not distributed. Lawyers for his sister and half-siblings are squabbling. Claims by some alleged descendants have been dismissed. According to some estimates the estate is worth more than $300 million USD.
All kinds of people, including famous musicians, die without having made a valid will. Some who did not get around to making a will include: Jimi Hendrix, Bob Marley, Kurt Cobain, Salvatore “Sonny” Bono, Duke Ellington, Barry White, George Gershwin, and Amy Winehouse.
Why wait? It is Make a Will Month! Please consider making a will. Thanks!
“Your Will is a Sacred Trust. It should be made when you are in the prime of life and better able to give it the consideration it deserves.”
From an advertisement in the National Post, Toronto Newspaper, by the Mercantile Trust Company on November 8, 1919.
One hundred years have passed since that advertisement and there have been many changes in the law since then, changes in the use of technology in making wills and changes in society. But, it does not appear that the advertising and marketing of wills has evolved much over the last hundred years. There is little advertising visible today and it does not appear to be effective. Recent surveys have shown that approximately half of all Canadians do not have a will. An Angus Reid Institute report indicates that the majority of Canadians today do not have a will, and only 35% say they have a will that is “up to date”. The main reason cited for not having a will was 25% who said, “Too young to worry about it”. Interestingly, only 18% responded that they thought “It’s too expensive to get a will written” – with this number being only 6% among people with a household income of more than $100K.
In a time when individuals are often spending what appears to be incredible sums of money on material things, and on sports events, concerts, stage productions, and other entertainment, one has to wonder if marketing of the legal service of “getting a will written” has somehow missed the mark when 65% of Canadians say they do not have a will that is up to date.
November is Make a Will Month, which is an opportunity for Ontario Bar Association members to help the public understand the importance of having a will and having it done by a lawyer. Please consider making a will in “Make a Will Month” and instead of putting it off – why not “do it now”. Make a Will Month will see many free legal information sessions presented by volunteers at places like libraries and community centers across Ontario throughout November. For more information, you can contact a lawyer or visit the Ontario Bar Association website.
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We all know how long an Estate Trustee typically has to wait for a Certificate of Appointment of Estate Trustee With or Without a Will, if filed in Toronto. Sometimes a Certificate of Appointment is not granted for six to eight months from the filing date.
The Court recently expressed its frustration with the frequency of motions being commenced by Estate Trustees seeking to expedite the granting of the Certificate of Appointment. The option of obtaining the Certificate of Appointment on a more urgent basis appears to no longer be available as a result. Apparently, it was not unusual for Estate Trustees to seek to expedite the process when real property of an Estate needed to be sold. The Court does not always agree that the sale of real property cannot wait until the Certificate of Appointment is granted.
Despite the Court’s stance on expediting the granting of Certificates of Appointment, there are special circumstances that would arguably warrant the Court’s intervention. What if an Estate Trustee’s authority is required to manage a certain asset of an Estate such that, if it is not obtained within a reasonable amount of time, the Estate could suffer significant expense?
An option that is available which should be carefully considered (particularly given the Court’s position on expediting the process overall) is seeking a limited grant from the Court for a particular purpose. Historically, this was known as a grant ad colligenda bona, and was limited to particular purposes as well as limited until such time as a general grant could be made (see Charles H. Widdifield, Surrogate Court Practice and Procedure, 2nd ed. (Toronto: Carswell, 1930) at 190).
Today, where the conditions for an appointment of an Estate Trustee During Litigation are not met, and there is a delay in the appointment of an Estate Trustee, a limited grant for the purpose of gathering in and protecting the assets may be sought by way of a motion or application for directions under Rule 75.06 of the Rules of Civil Procedure (see Ian M. Hull & Suzana Popovic-Montag, Macdonell, Sheard and Hull on Probate Practice, 5th ed. (Toronto: Carswell, 2016) at 384).
This option should be carefully considered where the circumstances are truly special such that the Court’s intervention is required on an urgent basis and the Estate Trustee cannot wait until the Certificate of Appointment is granted.
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Judges are sworn to decipher, apply, and uphold the law, an exercise that takes great care and sense considering the ambiguity of statute, the discordant doctrines of interpretation, and the prevalence of emotional tinderboxes in litigation. Perhaps more challenging, however, is the judge’s task of navigating through brambles of facts.
In the Newfoundland and Labrador Supreme Court decision of O’Dea Estate (Re),  N.L.S.C. 178, Orsborn J. was imposed with the burden of sorting out a conflict between Michael and Shannon, who were named co-executors and whose acrimonious sibling relations are reminiscent of a previous blog. Contrary to the testator father’s wishes, in the two-and-a-half years since his death, neither sibling was appointed executor; instead, litigation between the two raged, with each accusing the other of fraudulent behaviour. In competing applications, Michael sought the appointment of the Public Trustee, whereas Shannon applied to have herself appointed sole executrix.
Justice Orsborn decided as follows: “By asking to have the Public Trustee appointed, Michael has effectively renounced his appointment pursuant to the will.”
A mere proposed solution was construed as a renunciation. Michael’s position was undermined by his willingness to see the estate depleted (by hiring the Public Trustee, a pricy endeavour) combined with his disinclination to assume the role of co-executor.
Other factors were present in this decision. Orsborn J. was reluctant to accede to Michael’s request for financial reasons, for the estate was not large and the Public Trustee could be expected to take a significant chunk out of what remained. It also mattered to him that the testator’s intention to have Michael and Shannon administer the estate be at least half-honoured. Additionally, the judge ascribed significance to the fact that the other estate beneficiaries, who were also children of the deceased testator, preferred Shannon’s claim.
O’Dea Estate is another case in which the court has emphasized its commitment to limiting costs with small estates, but more importantly, it suggests the court will draw an adverse inference when litigants seek to hand off their responsibilities to third parties.
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David Morgan Smith and Devin McMurtry
This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the recent Ontario Court of Appeal decision in Rubner v Bistricer, and the law regarding informal trust arrangements.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
Disinheritance has long been a subject replete with interest. Is it a doleful mishap, a strange whim rooted in spite, a tragedy, or is it just desserts and a shield by which elderly persons can impose good behaviour on their successors? Charles Dickens was fascinated with the subject. From Great Expectations to Martin Chuzzlewit, many of his tales include fabulously wealthy testators, parasitical and destitute minor relatives, wronged rightful heirs, family bonds eroded by greed, artifice and deception – and often, in the end, a just outcome. Similar to how the poignancy of this theme stirred Dickens’ readers, aggrieved disinherited parties are often so stirred, to put it mildly, that they commence all-out legal warfare – quenching their scorn with the costly and sometimes blackened bread of estate litigation.
From the testator’s point of view, there is no foolproof method of disinheriting a child. It certainly helps if the child is not dependent, is an adult, has no basis for expecting anything, and there is a forceful, probative reason for the disinheritance (i.e. “so-and-so didn’t let me see my grandchildren”). It might be a good idea for a testator to explicitly state that he or she is disinheriting a child, lest the child later make the argument that the omission was a slip-of-the-mind rather than deliberate disinheritance. The testator may also include a clause explaining the rationale, though this can be dangerous – disinheriting someone out of racism (Spence v. B.M.O. Trust Company,  O.N.S.C. 615 at paras. 49-50).
Some drafting solicitors may suggest giving a small, nominal amount to the otherwise disinherited child – to partially appease the child, appear more moderate to a judge, or otherwise “save face”. The problem with this, however, is that as soon as someone is a beneficiary, he or she may be able to invoke beneficiary rights, such as objecting to the passing of accounts.
As for disinherited children, they may have legal recourse, such as section 58(1) of the Succession Law Reform Act, which gives the court discretion to determine if “adequate provision” has been made for a testator’s “dependants”. In Tataryn v. Tataryn Estate,  2 S.C.R. 807, the Supreme Court overturned the explicit disinheritance of a son and wife because it found that the testator failed his “moral obligation” to provide for them. If a dependant support claim leads nowhere, a disinherited child can always challenge the will, for the wellspring of arbitrary disinheritance is often incapacity or undue influence.
It is hard to lose a parent. Hard, too, is the loss of an inheritance. Keeping this in mind, testators who wish to prevent a conflagration of litigation might opt not to light the spark of disinheritance. If they feel the circumstances demand it, however, they should work with their estate planners to fortify their legal positions against the storms which might otherwise gather.
Thank you for reading,
Suzana Popovic-Montag and Devin McMurtry
Communications between a client and their lawyer are protected by solicitor-client privilege. Except in limited circumstances, only the client can waive the privilege.
Upon death, the right to waive privilege passes to the estate trustee named in the will, or appointed by the court if there is no will.
Is the right to waive privilege absolute, applying to all solicitor-client communications? According to a decision of the Supreme Court of Nova Scotia, the answer is No.
In Dumke v. Conrad, 2019 NSSC 310 (CanLII), the deceased died without a will. Her son applied for and was appointed as administrator of the deceased’s estate. He was the sole beneficiary.
Prior to the deceased’s death, the son was attorney for property for the deceased. The deceased regained capacity and brought a proceeding to declare the power of attorney in favour of the son invalid, and to compel the son to pass his accounts. That litigation was resolved.
Following the death of his mother, the son sought to obtain the lawyer’s file relating to the power of attorney litigation. The lawyer then brought an application for directions, with the question being whether the son was entitled to the litigation file.
The court held that the right to waive privilege is not absolute. The files sought must be relevant to an issue being decided or to the ability of the personal representative to administer the estate. Confidentiality “should not be interfered with except to the extent necessary and the right of the respondent to waive privilege must be interpreted restrictively.”
A deceased person could have criminal files, child protection files, divorce files, etc. If a person seeking advice from a lawyer knew that, after their death, their children would have access to those files, the free, confident, candid communication necessary between a lawyer and client would not occur. The basis of solicitor/client privilege would be eroded. As stated above in Descôteaux, the right to counsel would be imperfect if the privilege is eroded or frittered away.
The court could not find any reason why the files being sought would be relevant to the administration of the estate. Rather, it found that the files being sought were for “personal reasons not relevant to the administration of the estate”.
The court ordered that the file in relation to the power of attorney litigation not be disclosed.
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Recently, the Ontario Court of Appeal ruled that even where a gift is not validly executed, the intention of the parties can still be fulfilled through a bare trust.
A father made a profitable investment that was held by his wife in trust for their three children in equal shares. One brother sold his share of the investment, so that the remaining portion of the investment was to be divided 50/50 between his brother and sister. The sister subsequently disclaimed her share of the investment for tax reasons, with the result that her share reverted back to the mother. It was understood and orally communicated that the mother would hold the investment and gift the income from the investment to the sister, with the principal coming back to the sister as part of the mother’s inheritance. When the mother was eventually declared incapable and the brothers became their mother’s Attorneys for Property, they were suspicious of this arrangement between their mother and their sister, and brought an action against the sister and her husband.
The main issue was whether the past and future proceeds of the investment had been validly gifted by the mother to the sister, and whether the sister’s husband, who had assumed responsibility for using the proceeds, was liable as trustee de son tort.
In the initial ruling, the application judge rejected the sister’s claim to the funds and held that the gift from the mother was invalid. Funds had been transferred by the mother to the sister through signed blank cheques. A valid gift requires delivery from the donor to the recipient (Bruce Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014); Teixeira v. Markgraf Estate, 2017 ONCA 819, 137 O.R. (3d) 641, at paras. 38, 40-44), and the gift was not considered delivered until the cheque had been cashed. In this case, by the time the cheques were cashed by the sister, the mother had been declared incapable and lacked the capacity to gift. The judge ruled that the money belonged to the mother, and that the sister and her husband had to account for it, and the husband was liable as trustee de son tort.
This result was overturned recently in the Court of Appeal. The court found that the applicable legal mechanism here was not a gift, which was invalid, but instead was a valid bare trust. A bare trust is where the trustee has no obligations other than to convey the trust property to the beneficiaries on their demand (Donovan W. M. Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012) at pp. 33-34).
The decision turned on whether there had been sufficient certainty of intention from the mother to create a bare trust, and the court found that there had been. The trust did not have to be formally evidenced in writing because the trust property was funds in a bank account and not land or an interest in land (Statute of Frauds, R. S. O. 1990, c. S.19, ss. 4, 9-11; see also In the Estate of Jean Elliott (2008), 4 E. T. R. (3d) 84 (Ont. S. C.) at para. 42.). There was sufficient evidence in the conduct of the parties to show an intention for the funds to be held for the sister as well as one of her brothers in equal shares, and the certainty of intention for the mother to hold the money as bare trustee was satisfied. As there was a valid trust, the husband was not liable as trustee de son tort because he had not acted inconsistently with the terms of the trust. While the proceeds that had already come from the investment were held on bare trust by the mother, the future distributions from the investment were not, as future property cannot be the subject matter of a trust (para. 58 and 84 of the judgment).
Moral of the story
This is a great indicator of how, when a gift is invalid, the court will use the legal mechanism of a bare trust to give effect to the intention of the parties, so long as their intention is sufficiently certain.
Thanks for reading,
Ian M. Hull and Sean Hess