A new Saskatchewan Court of Appeal case sheds more light on the law of standing with respect to will challenges. In Adams Estate v. Wilson, the Appellant executor appealed an earlier decision in which it was held that the Respondent, Mr. Wilson, had legal standing to bring an application to have the deceased’s will proved in solemn form. Mr. Wilson purported to be the deceased’s long-time friend and employee, and he submitted that the deceased had promised to leave him her “ranching operation”; despite this claim, the deceased did not name Mr. Wilson in her will. Instead, she imbued her executor with the discretionary power to distribute the estate to deserving parties, including “certain persons who have been trustworthy and loyal”.
The Chambers judge reasoned that since the statute, Rule 16-46, allows an application by a person who “may be interested in the estate”, Mr. Wilson, as potentially both a creditor and beneficiary, may have been an interested party and therefore had standing. Mr. Wilson succeeded in qualifying himself as a potential creditor because of a related action against the estate. His claim to be a potential beneficiary, though murkier, also succeeded; the claim was that since Mr. Wilson had been “trustworthy and loyal”, the executor could choose to give him a part of the estate in adherence with the will – making him a potential beneficiary.
The Court of Appeal allowed the appeal, finding that Mr. Wilson was a mere “stranger to the will” and, as such, did not have standing. Rather, only the following classes of persons, with specific financial or legal interests in the estate, have standing to challenge a will: (1) Those named as beneficiaries or otherwise designated in the will or other testamentary documents; (2) those to whom the estate would devolve under an intestacy; and (3) those with claims pursuant to The Dependants’ Relief Act, The Family Property Act, and The Fatal Accidents Act. The Court explained that creditors, as Mr. Wilson claimed to be, do not have standing because they have no gain in “interfering with the devolution of property”.
The Court also found fault with Mr. Wilson’s claim to be a potential beneficiary, which was described as disingenuous, circular, and disconnected:
“He ignores that his purpose in requesting standing is to challenge the validity of the Will and the very bequest upon which he based his claim of standing. This is perverse logic because, if successful, Mr. Wilson will have eliminated any chance that he would take under the Will.”
Mr. Wilson was trying to derive rights from a will he was repudiating and suggesting that he might receive a gift from an executor whose legitimacy he denied and against whom he was litigating. He was attempting to win on a legal technicality – on form in spite of substance. In addition to reiterating the parties who may challenge a will, the Court in Adams Estate v. Wilson has put another brick in the wall between those seeking to exploit legal technicalities and the successful results they seek.
Thank you for reading – have a wonderful day,
Suzana Popovic-Montag & Devin McMurtry.
This week on Hull on Estates, Stuart Clark and Kira Domratchev discuss a finding of support for an adult dependant child in Deleon v Estate of Raymon DeRanney, 2020 ONSC 19.
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The last will and testament of the gunman responsible for Nova Scotia’s mass shooting in April 2020 was recently made public. The gunman’s will names his common law spouse as the executor of his estate, estimated to be worth around $1.2 million. However, the gunman’s spouse has renounced her right to be executor of his estate and it is now being administered by the Public Trustee. It was also rumoured that the spouse had renounced any interest she may have had in the gunman’s sizable estate.
Whether the gunman’s partner did in fact relinquish any inheritance remains to be confirmed. However, there are a multitude of reasons why someone may choose to waive their right to an inheritance, including:
- Emotional grounds;
- Personal moral or ethical grounds;
- To avoid taking possession of an undesirable or costly asset, such as real property that requires significant repairs or maintenance;
- To avoid subjecting assets to potential creditors if the beneficiary is on the brink of bankruptcy or involved in a lawsuit; or
- To allow the asset to pass to a secondary beneficiary.
For an overview of what is required to properly disclaim an inheritance, you can read Ian Hull’s blog here.
As shown by the above list, even where a beneficiary does not plan to benefit personally from an inheritance they may still be interested in what happens to that inheritance. In such situations, the beneficiary may want to think carefully about whether disclaiming their inheritance is the best option.
It is important to note that a person can only disclaim a gift if they have not yet benefited from the assets and, once disclaimed, that person has no control over the assets. In other words, a beneficiary who renounces a gift should not have anything to do with those assets either before or after they have been disclaimed. This also means that the beneficiary should not have any say in who receives the inheritance.
If a person wants to disclaim their inheritance in order for it to pass to a secondary beneficiary, they should confirm whether the deceased’s will or intestacy laws, as applicable, provide for that outcome. If it does not, or if the person wishes to direct their inheritance to some other individual or charity, there is another option: they can accept the inheritance and give some or all of the assets to whomever they choose. Depending on the beneficiary’s particular goals and circumstances, accepting an inheritance and distributing the assets as they see fit may be preferable to disclaiming the assets.
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As the 21st century progresses, societies across the world have moved towards legalization and decriminalization of drugs and, in general, a narrower definition of what constitutes a “vice”. At the same time, there have been increasing efforts, both legally and culturally, to safeguard people from falling into dependence. The Canadian Radio-television and Telecommunications Commission prohibits alcohol advertising that depicts the consumption of alcohol. In contrast to decades wherein Santa Claus and doctors were advertised smoking, cigarette packaging is decidedly less festive – indeed, its gore is more characteristic of a horror film than a consumer product. So wary have some of us become that there have been studies published in Australia and Britain that have analyzed James Bond’s drinking habits and stated that he would be “at high risk of multiple alcohol-related diseases and an early death” (as though Bond blanches at risk!).
In previous centuries, there was far less legal regulation (except under Prohibition, a marked exception) of the aforementioned indulgences, but there was no less apprehension with respect to their widespread usage. In the 1887 case of Jordan v. Dunn,  W.L. 9876 (Ont. Q.B.), a testator devised his lands to his son on the condition, in part, that he abstain from intoxicants and card-playing. The Court decided that the gift did not vest until the beneficiary adhered to the testator’s rules:
“If a devise be only on the performance of some particular duty or upon some particular event; that is, if it be a condition precedent, there is no gift unless the condition is fulfilled; and it makes no difference that the event is impossible, impolitic or illegal.”
In Quay, Re,  CarswellOnt 706, a testator’s gift to his son came with the condition that he was not “engaged in malt or spirituous liquor traffic or in any form of gambling or games of chance”. The son, perhaps a little piqued at the testator’s implication, sought a determination of the condition’s validity. The Court upheld the condition, not construing it as an in terrorem clause but as a “competent direction in furtherance of public interests”. A distinction was also drawn between “playing games by way of diversion or amusement” and gambling as a daily occupation.
The testatrix in Kennedy Estate, Re,  CarswellMan 72, was yet more prohibitive, giving her daughter farmland rental proceeds only as long as her daughter did not “smoke or drink intoxicating liquor”. The Court approved of this provision:
“Conditions that a person must not drink intoxicating liquor, or play cards, or must ‘continue steady’ are valid conditions and although there is no specific authority I hold that a condition against smoking comes within the same category and is a valid condition.”
Ostensibly, these “continue steady” conditions are still legally valid, but we cannot say with great certainty, for it seems that these days testators are less inclined to make such conditions for their testamentary gifts. This is unfortunate for students of the law eager for test cases, although it is fortunate for fun loving beneficiaries, whose smiles might otherwise dampen from the constant accompaniment of a sober-faced condition precedent.
Thank you for reading … Have a great day,
Suzana Popovic-Montag & Devin McMurtry.
An oft-repeated maxim of equity is that “equity regards substance rather than form”. Just outcomes, it is thought, should not be frustrated by mere technical shortcomings or other superficial flaws. However, in applying this principle, courts are mindful not to neglect form in every case or to too great an extent, lest legal drafting becomes slipshod and legal results unpredictable.
A recent British Columbia decision dealt with, in part, the dichotomy of form and substance in the context of will drafting errors. In Conner Estate v. Worthing, there were three patent errors on the face of the deceased’s will: (1) the will provided for 150% of the sale proceeds of the deceased’s house, owing to, seemingly, a mathematical error (50% given to the husband, 20% to five others); (2) the residue was gifted twice, once to the husband and once to the children; and (3) several lines appeared to have been missing. While the court acknowledged that it was generally barred from adding words to erroneous wills (though it had the power to delete words), it found that this case was an exception to the rule, for the deceased’s intentions could be clearly ascertained from the extrinsic evidence – the solicitor’s notes and the deceased’s letter of instructions – and the solicitor was responsible for the errors:
“While the exception to the prohibition against adding words on an application to rectify a will at the court of probate stage in Moiny Estate is extremely narrow, I conclude that the facts in this case fit within that narrow exception. Ms. Conner’s stated intentions should not fail simply because her solicitor failed to draft her will in a manner that gave effect to her wishes.”
A similar result likely would have been reached in Ontario, where it has long been held that in matters of “equivocation” – when the words in a will apply to two or more persons – courts can look to extrinsic evidence to infer a testator’s actual intention. If a will is not equivocal, and the testamentary intention can be discerned in the will, the courts cannot examine extrinsic evidence – and whatever the substance, the form will prevail.
As we have previously written, the courts may be hindered from rectifying drafting errors in scenarios where the errors are subtle and there is little extrinsic evidence of true testamentary intention. It is important, therefore, for both drafting solicitors and testators to carefully review their wills before executing them, and to watch out, in particular, for those minor errors which may burn while emitting no smoke.
Thank you for reading!
Suzana Popovic-Montag and Devin McMurtry.
A recent decision out of Alberta on holograph wills is interesting. The Alberta Court of Queen’s Bench decision released on February 20, 2020 in Edmonton in the Estate of Dalla Lana, 2020 ABQB 135 starts with the following :
“Mr. Dalla Lana made a will in 1997. On March 1, 2018 (four days before he died) and via notes made on two sticky notes, he made what he described as “changes to my earlier will”. The “changes” if valid, effectively rewrote the entire will.”
The decision then goes on to find that the “two sticky notes” were a valid will. This was one more decision in a long line of cases (in substantial compliance jurisdictions, unlike Ontario) with wills being upheld when written on everything from napkins to tractor fenders.
If a valid will can be done on a sticky note, one should ask is there any reason now why an electronic will could not be done on an iPad or smartphone?
Pandemic emergency Orders in Ontario have recently accepted wills being signed and witnessed by video conference or by counterpart. However, there is still a requirement for a “hard copy” of the will. A purely electronic will with a digital signature is still not permissible.
Some jurisdictions have already allowed electronic wills into probate. In Australia, the High Court of Queensland gave probate to a will in 2013 contained in the iPad of the deceased, in Yu Estate 2013 QSC 322.
Although digital electronic signatures have been allowed in Ontario for use in some business situations for many years, there are some restrictions on doing electronic will signatures which are found in the Electronic Commerce Act, 2000, SO 2000, c 17,
31 (1) This Act does not apply to the following documents:
- Wills and codicils.
- Trusts created by wills or codicils.
- Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care.
Given the emergency statutory provisions triggered by the pandemic, it seems inevitable that a meaningful debate will soon ensue about the merits of electronic wills and the broader question of whether Ontario should adopt substantial compliance in its estates legislation.
Thanks for reading.
Please enjoy these blogs on the subject:
“The Adventure of the Norwood Builder” begins when Holmes and his companion, Watson, are visited by a Mr. MacFarlane, a “wild-eyed and frantic” young man who has been pursued by the police and charged with the murder of Mr. Oldacre, an eccentric and reclusive bachelor. Mr. MacFarlane swears upon his innocence, but his situation is forlorn, as Mr. Oldacre, on the day he was allegedly murdered, prepared a holograph Will in which he gave everything to Mr. MacFarlane.
Upon inspection of the holograph Will, Holmes deduces that it was written on a train, since there are some sentences that are clear and discernible, and others which are illegible – “the good writing represents stations, the bad writing movement”. According to Holmes, this corroborates Mr. MacFarlane’s credibility:
“It is curious – is it not? – that a man should draw up so important a document in so haphazard a fashion. It suggests that he did not think it was going to be of much practical importance.”
Holmes becomes more suspicious of the official narrative when he discovers, amongst other things, that prior to his death, Mr. Oldacre transferred his assets to a mysterious unknown, Mr. Cornelius.
In estate litigation in Ontario, it is common practice for litigants to employ handwriting experts to investigate the authenticity of documents and signatures, but they, likely cautious and mindful of their professional reputations, may be less inclined to make such momentous and bold inferences. In cracking the case (spoiler alert!), Holmes certainly employs measures that go far beyond those available to present-day estate litigators, experts, investigators, and the authorities.
Working with some suggestive facts – such as that Mr. Oldacre executed his Will sloppily and that he transferred his wealth to one party while designating another party as his estate beneficiary – Sherlock Holmes deduces that Mr. Oldacre has faked his own death, framed Mr. MacFarlane, and transferred his wealth to the fictitious Mr. Cornelius, who is in fact himself, in order to defraud his creditors. In an effort to vindicate his theory and save Mr. MacFarlane, Holmes invites the police into Mr. Oldacre’s home, instructs Watson to put a match to some straw, and then, when there is a blaze and smoke billowing within the house, Holmes has the police yell “fire”:
“A door suddenly flew open out of what appeared to be solid wall at the end of the corridor, and a little, wizened man darted out of it, like a rabbit out of its burrow. ‘Capital!’ said Holmes, calmly. ‘Watson, a bucket of water over the straw … allow me to present you with your principal missing witness, Mr. Jonas Oldacre.’”
These types of truth-finding artifices, though extreme and unorthodox, are within the purview of the unofficial detective. Estate litigators, on the other hand, operate under the stricter ambit of the Law Society of Ontario, which would likely frown upon such irregular practices.
Thank you for reading – have a great day,
Suzana Popovic-Montag & Devin McMurtry
As we know, due to the COVID-19 pandemic, Ontario has passed emergency legislation allowing for Wills and powers of attorney to be executed and witnessed virtually, and in counterparts. This legislation will remain in effect for the duration of the declared emergency. Although Premier Doug Ford recently announced a plan for reopening Ontario, the timeline for doing so is still vague, and it’s unclear when the emergency will be declared to be at an end. Once the emergency is over, the normal rules for execution of Wills and powers of attorney, as set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26, and the Substitute Decisions Act, 1992, S.O. 1992, c. 30, will once again govern how such documents may be validly executed.
Before coronavirus became such a pressing concern, there was some discussion in the United States, of allowing Wills executed electronically to be considered valid testamentary documents. According to this article in The New York Times, entitled “A Will Without Ink and Paper”, at the time the article was published in October 2019, some states already had laws to allow e-signatures on Wills, and others were looking to adopt similar laws this year.
In the US, the Uniform Law Commission has proposed the Uniform Electronic Wills Act, which is intended to serve as a model for states who wish to enact such legislation. The law would allow testators to complete the entire Will-making and execution process online, without a lawyer or notary present. There are already online services, currently serving states that already have laws allowing electronic Wills, which provide a platform for the creation of these digital Wills.
According to The New York Times article, the process of creating an electronic Will involves a testator creating a Will online, and then having a video-conference call with a notary. The notary will review the document, ask questions of the testator, notarize it, and send it back.
Although the concept of electronic Wills seems convenient, the costs may ultimately outweigh the benefits. As one lawyer quoted in the article states, signing a Will “is not like getting toilet paper delivered by Amazon instead of going to a supermarket…This is a solemn thing that people don’t do every day.” The “inconvenience” of consulting a lawyer, having a Will professionally drafted, and executed in the traditional way, will likely be worth the trouble for most testators, particularly when you consider that this is not a task that needs to be done repeatedly, at frequent intervals (like going to the grocery store to buy toilet paper).
The article mentions a number of points as to why electronic Wills may not be such a great idea. Without a lawyer’s involvement, there is a heightened risk for undue influence to go undetected. Testators with significant assets that may be structured in complicated ways, or who have unique family situations, such as a blended family, are not likely to be well-served by the creation (let alone the execution) of a Will online, without estate planning advice from a lawyer.
Desperate times call for desperate measures, and it is helpful to have alternate methods of executing Wills and powers of attorney in these unprecedented times. But when life goes back to normal, I think we can be comfortable with the return to the “old-fashioned” way of executing Wills and powers of attorney. Although some may consider the process to be cumbersome, the added protection for testators, and the comfort of an estate plan that takes into account each testator’s unique situation, is worth the price.
Thanks for reading,
You may also enjoy these other blog posts:
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:
Under Rules 75.01 and 75.06 of the Rules of Civil Procedure, any person who has a financial interest in an estate may commence an application to have a will “proved in such manner as the court directs.” In Neuberger Estate v York, 2016 ONCA 191, the Ontario Court of Appeal clarified that the court has a discretion whether to order that a testamentary instrument be proved. The Court went on to state that Rule 75.06 requires a moving party to “adduce, or point to, some evidence which if accepted, would call into question the validity of the testamentary instrument that is being propounded.”
In Joma v Jaunkalns, 2019 ONSC 6788, the Ontario Superior Court of Justice considered the principles mentioned in Neuberger Estate v York. In doing so, the case provides a helpful review regarding the minimum evidentiary threshold to permit a will challenge.
In Joma v Jaunkalns, the deceased, Zenta Palma, died in September of 2018. She was a widow and did not have any children. Zenta’s siblings and only niece, Brigita, predeceased her.
The Deceased was survived by Brigita’s brother, Ronald. She was also survived by Brigita’s husband, Robert, and their children, Michael and Emily.
In 2012, the Deceased executed a Will naming Robert as her estate trustee and Michael and Emily as the residual beneficiaries. Robert’s brother, Viktor, was named as the alternate estate trustee and his children were named as legatees.
Ronald claimed that he was named as a residual beneficiary under an earlier Will but the Will could not be located.
Ronald asserted that, at the time the Deceased executed the 2012 Will, she lacked testamentary capacity and was unduly influenced by Robert. The question before the court was whether Ronald met the required threshold to be granted his request for the 2012 Will to be proven.
Upon considering the evidence of Ronald and Robert, Justice Dietrich found that Ronald did meet the threshold. She arrived at this conclusion based on the following:
- The Deceased was an 84-year old widow who was reliant on her two sisters and her niece and nephew for support and assistance;
- In 2011, the Deceased was taking prescribed medication that would “tranquilize” her;
- The Deceased was taking anti–anxiety medication approximately one month before she executed the 2012 Will;
- Robert’s evidence that the Deceased never had any cognitive impairment was found to be a broad conclusory statement;
- Robert was a physician with experience assessing capacity but he did not offer any evidence of having examined the Deceased or knowing exactly what medication she was taking and in what dosage;
- Ronald’s evidence of Robert’s involvement in the Deceased’s finances raised the spectre of Robert’s potential undue influence over the Deceased;
- For example, Robert undertook a banking transaction on behalf of the Deceased which had upset her so she asked Robert to reverse it.
Based on the evidence above, Justice Dietrich found that Ronald’s evidence amounted to more than suspicion. If accepted, it would call the validity of the Deceased’s Will into question.
Furthermore, a review of the Deceased’s financial records, medical records and the drafting solicitor’s file would be beneficial. Quoting from Seepa v. Seepa, 2017 ONSC 5368, Justice Dietrich went on to state that Ronald “ought to be given the tools such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to put a best foot forward on the merits.”
In summary, Joma v Jaunkalns demonstrates that the evidentiary burden on a party who wishes to challenge a will is not fairly high. Evidence that amounts to more than a suspicion should suffice.
Thanks for reading!
Ian Hull and Celine Dookie
For further reading on this topic, check out these other blogs: