When parents are creating their Last Will and Testament, they often direct that assets are to be divided amongst their children. However, this is not always how it works, as the testator has the right to leave their estate to whomever they want unless they have dependents who must be financially taken care of.
Indeed, some very rich celebrities – Sting, Elton John, Mark Zuckerberg, Warren Buffet and others – reportedly have said that their children will not receive the bulk of their estates. Their reasons include giving them “some semblance of normality, some respect for money, some respect for work” and “huge sums of wealth … distorts anything they might do in creating their own path.”
You may not have multimillionaires as parents, but there is the chance that when they die, you will not be named as a beneficiary in the will. If that happens and you feel you are entitled to some portion of the estate, a legal challenge to the will can be mounted. But beware – the process will be difficult and the chances of success uncertain.
The first thing to keep in mind is that only a spouse or dependent children can contest a will that has disinherited them. You have to have a financial interest in the estate and must be able to show you were named in a prior will, or that the deceased had promised to take care of you after their passing.
If probate has not already been granted, you can file a Notice of Objection with the court registrar. If probate has been granted, then you have to bring a motion for the return of the certificate of appointment.
Before doing that, it is wise to discuss with legal counsel why you are objecting to the will. If your reasons are based on emotion rather than reason, you will likely be advised to walk away and accept the situation. The court has little tolerance for notices of objections based on frivolous claims, and you may end up having to pay the legal costs the estate incurred in defending against your claim.
You also have to consider if contesting the will makes financial sense. Does the potential gain outweigh the legal costs (not to mention the time, effort and emotional stress) the process may cause?
That being said, there are valid reasons for taking legal action. The two main ones are that there was a lack of testamentary capacity when the final Will and Testament was drawn up, or that the testator was subject to undue influence by someone. Other valid reasons for mounting these challenges include:
- the will is unsigned or not properly witnessed
- the testator was not aware of the full contents of their estate
- there are ambiguous terms in the will that are open to interpretation
- simple fraud is alleged
Any of these reasons are grounds for filing a Notice of Objection. If successful, the will may be declared invalid.
Cases that come before the court include instances where a person near the end of their life leaves their estate to a much younger person who was their caregiver or romantic partner. Family members who find themselves cut out of the inheritance have to prove that the new beneficiary exerted undue influence in the writing of the will.
That is difficult, as mental capacity is a fluid concept. A person may have the capacity to enter into a marriage, but be incapable of effectively managing their own financial affairs. As the population ages, with many people holding onto sizeable financial portfolios, we will likely see more of these predatory marriages in the future.
Challenging a will in court can be a costly, time-consuming and emotionally draining experience. Litigation can pit family members against each other, straining relationships in a time when they should be mourning. Even if they win, beneficiaries may have to wait for years as the legal process unfolds.
If you feel you have been unfairly denied an inheritance, you should speak to a wills and estates lawyer. While every case is fact-dependent, they can provide you with an informed opinion about your chances of success.
Thanks for reading, and have a great day.
“Ademption occurs when the property which is the subject of a specific gift, although in existence at the date of the will, is not in the testator’s estate at his death. It may have been sold or given away by the testator, or it may have been lost, stolen or destroyed. In the absence of a statutory provision to the contrary, if a specific gift has adeemed, the beneficiary gets nothing.”
This explanation of ademption comes from Oosterhoff on Wills, 8th ed. (Toronto: Carswell, 2016) at 538, as quoted in Best v. Hendry, 2021 NLCA 43 (CanLII).
In Best, the issue of ademption was front and center. The testator left a will that provided that her house was to go to her niece Hendry, and the residue of her estate was to go to her niece Best. Many years after making the will, the testator developed dementia, and was moved from her home to a nursing home. Best applied to be her guardian, and proceeded to sell the home.
Upon the testator’s death, Best claimed that the gift of the house adeemed, and the proceeds of sale fell into the residue. The Newfoundland Court of Appeal agreed.
In Ontario, recourse to ss. 35.1 and 36 of the Substitute Decisions Act may have applied. Section 35.1(1) provides that a guardian shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person’s will. Section 35.1(3) allows for the disposition of the property if it is necessary to comply with the guardian’s duties. However, s. 36 provides that the doctrine of ademption does not apply to such dispositions by the guardian, and that the beneficiary is entitled to receive from the residue of the estate the proceeds of disposition, without interest.
According to the decision in Best, only Ontario and B.C. have such anti-ademption legislation.
(Best also dealt with issues relating to a release initially signed by Best, the liability of the estate trustee to Best, and the right of the estate trustee to recover funds improperly paid to a beneficiary (Hendry). I will not address those here.)
This brings me to my favourite ademption joke. A testator went to a lawyer to prepare his will. He told the lawyer that he wanted to make a bequest of a house to his loving wife, a cottage to his two loving sons, and a Frisbee collection to his loving dog. When the lawyer reminded the testator that he did not have a house, a cottage or a Frisbee collection, the testator responded: “Well, that’s their problem. I’ll be dead by then.”
Have a great weekend.
A headline of a 2019 Forbes article delivered a blunt message to those of us who practice estate law: “Electronic wills are coming whether lawyers like it or not.”
The article notes that the U.S. Uniform Law Commission “recognizes the trend in online everything” and recently approved the Electronic Wills Act, which provides a framework for a valid electronic will. Under the provisions of the Act, individual states can determine the number of witnesses required for the creation of a will and whether their virtual presence is sufficient. The will has to be in text form, meaning that video and audio wills are not allowed but, once the will is signed, witnessed and notarized (if required), it will be legal.
In Canada in 2020, the Uniform Law Conference of Canada (ULCC) approved in principle amendments to its Uniform Wills Act to allow for the drafting of electronic wills. A progress report from the ULCC notes that the Electronic Transactions Act has determined that the electronic medium was “sufficiently established, reliable and usable to be accepted for all business purposes.”
The Act specifically exempts three areas: wills, powers of attorney and conveyances. The exemption for wills should be lifted, the ULCC committee recommends, noting that “we now have almost 15 years of experience of electronic commerce … much of our daily lives and arrangements are performed electronically – most of our banking, all of our healthcare records, most of our insurance and even our professional certification is all carried out electronically. In that context, what argument could be advanced that wills are so different and so exclusive that they could not be accommodated under our approach to electronic commerce.”
The committee claims that “other than ‘tradition’ it is difficult to identify any cogent argument to support the continued exception. An electronic record, once stored, is reliable, can be retrieved for future use and its ‘custody and control’ is probably more clearly tracked in electronic form than in hard copy.”
Most provinces are being cautious about embracing electronic wills, or e-wills. British Columbia has taken the lead with the establishment of Bill 21: Wills Estates and Succession Amendment Act, 2020. Bill 21 was built upon a ministerial order that permitted the electronic witnessing of wills while British Columbia was in a state of emergency due to the COVID pandemic. It expands the definition of a will to allow one done in “electronic form” to satisfy the requirement that a will must be in writing. The bill received royal assent in August, 2020.
In Ontario, Attorney General Doug Downey has been content to partially open up estate law to the electronic medium. With the passage of Bill 245, Accelerating Access to Justice Act, 2021, the virtual witnessing of wills and power of attorney documents is now allowed in Ontario on a permanent basis. Previously, it was introduced on a temporary basis during the pandemic.
Virtual witnessing means the testator and witnesses can be connected through a video call, rather than being physically together in a lawyer’s office. There are two important caveats to keep in mind – the first being that at least one of these witnesses must be a licensed lawyer or paralegal. They are there not just to be a witness, but also to confirm that the testator has the requisite capacity to sign the Last Will and Testament and that they fully appreciate the nature and contents of it.
The second caveat is that while the act of signing can be done virtually, electronic signatures are not allowed. Instead, everyone involved must print out the documents and sign them in wet ink. Once they are put together and stored safely, the will is complete and legal.
While the Forbes article quoted in the introduction may be correct about e-wills being inevitable – some U.S. states, Britain and Australia have either passed laws allowing digital wills or are considering them – there are still many reasons for people to maintain the traditional approach for the time being.
The human contact between the testator and legal counsel offered in a face-to-face meeting cannot be fully replicated in a virtual meeting. This contact builds trust and reassurance, which is vital when drafting this important document. There is also a unique set of concerns surrounding the preparation of estate planning documents that sets them apart from other legal documents that are signed digitally.
At Hull & Hull LLP, we will be monitoring the evolution of e-wills and working to accommodate any legislation the province introduces, but we are glad to see Ontario taking a cautious approach in this area.
Take care, and have a great day.
Most things in life are not guaranteed, but one thing most definitely is – death. Although that may be an unpleasant thought for many, we cannot escape from this inevitable truth and should become more comfortable talking about and planning for it.
While a large part of the Canadian population had previously ignored the need for estate planning, the COVID-19 pandemic encouraged people to change their thinking and realize the importance of doing so. In fact, many Canadians took matters into their own hands.
According to a poll conducted by the Angus Reid Institute in 2018, 51% of Canadians did not have a will in place before the pandemic. There were several reasons to explain this lack of estate planning, with the majority being summarized below:
- 25% think they don’t need to worry about it because they’re “too young”
- 23% feel it isn’t worth their time because they don’t have enough assets
- 18% think it’s too expensive to get a will made
- 8% don’t want to think about dying
- 5% think it’s too time consuming
There have been general studies conducted to find out why people hesitate to make a will. It has been determined that many people are simply avoiding making tough decisions. But why spend time working hard to accumulate assets during your lifetime only to risk having them be distributed without any consideration of your wishes?
There is no harm in starting your estate planning “early” and then periodically reviewing and updating your will and estate plan after a framework has been established. Revisiting plans every five years, as frequently recommended, would greatly reduce the difficulty and time that would be spent once you are older with a larger and more complicated estate.
As well, the expense that can later be incurred as a result of estate litigation is likely to be higher than the cost of making a will now. Alternatively, if you don’t have a large estate, you can make a simple will yourself, although one should be weary of the complications that arise from not seeking professional advice.
The Coronavirus was the wake-up call many Canadians needed to start thinking about their own estate plans. While it is a relief that the pandemic may soon be behind us, the threat of death never truly goes away. Estate planning is a life-long conversation that should be normalized so that one can ultimately “rest in peace” whenever the time may come.
Suzana Popovic-Montag and Ekroop Sekhon
Our readers will already know about the recent approval of legislation providing for will validation in Ontario under Bill 245, the Accelerating Access to Justice Act, 2021. The act received Royal Assent in April 2021. The changes under Schedule 9, which addresses amendments of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”), come into effect on January 1, 2022 (other than the update to virtual will witnessing in counterpart, which has already been made permanent under the revised Section 4 of the SLRA).
As of January 1, 2022, a new Section 21.1 of the SLRA will read as follows:
(1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.
No electronic wills
(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.
(3)Subsection (1) applies if the deceased died on or after the day section 5 of Schedule 9 to the Accelerating Access to Justice Act, 2021 came into force.
We have seen Section 21.1 referred to as both a will-validation provision and as a “substantial compliance” provision. In fact, Section 21.1 does not specify that substantial compliance with the formal requirements for a valid will under the SLRA is required and it may, accordingly be more accurately referred to as a will-validation provision. Either way, this is a significant change to the law of validity of wills in Ontario and our province, as of January 1, 2022, will no longer be a strict compliance jurisdiction where some documents clearly intended to function as a valid will are rejected and deemed ineffective for technical reasons.
Notably, the legislation carves out the use of electronic signatures. Some estate practitioners had been hopeful that electronic signatures would be accepted under the proposed estate legislative reform, given the recent increased acceptance of electronic signatures in the swearing/commissioning of affidavits and other legal documents and options available to verify their authenticity. Section 31 of the Electronic Commerce Act, 2000, SO 2000, c 17, excludes the application of that act to wills, codicils, testamentary trusts, and powers of attorney.
Accordingly, it appears that a will signed by the testator or witnesses using electronic means cannot be validated by the Court, even after the new Section 21.1 is introduced to the SLRA. For now (including after January 1 of next year), all wills still require actual, “wet” signatures in order to be valid. Furthermore, even if a will may be validated by the Court under Section 21.1, the uncertainty, delay, and expense relating to applying for court-ordered validation of a will may still be best avoided by seeking an experienced estate planning lawyer’s assistance in the preparation of a Last Will and Testament.
Thank you for reading.
The appeal of an online will kit is undeniable. Advertisements promise that, for less than $100, anyone can draw up a will in just 20 minutes without ever having to set foot in a lawyer’s office.
While this convenience and low cost will appeal to some, there are significant drawbacks that must be considered when comparing a do-it-yourself document to a traditional Last Will and Testament that a lawyer would prepare.
For example, one of the key selling points of a kit is that it is simple, with few forms to fill out. That should set off alarm bells. Most of us have complicated personal and financial lives. When we die, we will leave behind complex estates that include investments, property, securities and perhaps multiple beneficiaries. A proper estate plan can hardly be captured in the fill-in-the-blank format of an online will kit.
Although these kits claim to cover all the legal issues that govern estate planning, how will you know that they do? If there is a mistake or omission, your beneficiaries will pay the price for the shortcut you took when drawing up your will.
Convenience and a low up-front cost are no substitutes for the advice a wills and estates lawyer can provide. As mandated by the Law Society of Ontario, we constantly take courses to ensure we are aware of new developments in the law. Standardized online kits may not reflect changes brought about by the courts and provincial government.
For example, Bill 245, the Accelerating Access to Justice Act, significantly alters Ontario’s estate laws. As I discussed in a previous post, it makes five major changes to the Succession Law Reform Act. It can be assumed that an online will kit will not address those legislative updates.
The role of the lawyer is to make sure your Last Will and Testament reflects your intentions for your estate after you die. Estate lawyers are versed in the laws of the province, so we can ensure your Last Will and Testament complies with all provincial legislation as it divides up your asset as you desire.
A will drawn up by a legal professional should help avoid uncertainty and court challenges after your death, reducing the fees your estate will have to pay. The more complex your estate, the more important it is to make sure your will reflects that complexity, while clearly laying out your final wishes. An online form that can be completed in 20 minutes pales by comparison.
Another problem with online will kits is that they may be met with court challenges. With a traditional will, clients discuss the details of their estate with a lawyer who can identify problems that may arise in the future, as well as suggest ways to avoid them. Do-it-yourself kits may not effectively address scenarios such as blended families or if you have children with different spouses. These issues require appropriate language when drafting a will – phrasing that an estate lawyer can provide.
Legal counsel can ensure your will is free of vague wording and conflicting or ambiguous provisions. The wording in an online kit may sound professional, but it may not meet the high standard a legal practitioner would bring to the document’s preparation.
Don’t take a chance with the inheritance you want to leave loved ones. You may never know if saving a few hundred dollars on preparing your will was worth it, but your loved ones may if problems arise.
Contact me if you need assistance with drawing up this important document – and have a great day!
Further to our article “Small Estate” in Ontario now $150,000, as of April 1, 2021, for an estate valued at $150,000 or less, probate can be applied for through the small estate court process.
Applying for probate can be a complicating and overwhelming process, especially considering the fact that the steps that need to be taken or forms that need to be filled out can vary depending on the specific circumstances of the estate.
The Probate of a Small Estate webpage provides helpful information on some of the steps included in applying for probate of a “Small Estate”.
Please see below a brief overview of some of the important things to consider when applying for probate of a “Small Estate”.
Depending on the specific circumstances of the estate, different court forms may need to be completed and filed with the court.
As noted in Rule 74.1.03(1) of the Rules of Civil Procedure, “A person may seek a small estate certificate by filing an application for a small estate certificate (Form 74.1A) together with,
(a) a request to file an application for a small estate certificate or an amended small estate certificate (Form 74.1B);
(b) proof of death;
(c) a draft small estate certificate (Form 74.1C);
(d) if there is a will, the original of the will and of any codicils, together with the following evidence of due execution of the will and each codicil:
(i) if the will or codicil is not in holograph form,
(A) an affidavit of execution (Form 74.8) of the will or codicil,
(B) if the will or codicil contains an alteration, erasure, obliteration or interlineation that has not been attested, an affidavit as to the condition of the will or codicil at the time of execution (Form 74.10), or
(C) if each of the witnesses to the will or codicil has died or cannot be found, such other evidence of due execution as the court may require, or
(ii) if the will or codicil is in holograph form, an affidavit attesting that the handwriting and signature in the will or codicil are those of the deceased (Form 74.9);
(e) any security required by the Estates Act; and
(f) such additional or other material as the court directs.”
Estate Administration Tax
It is important to determine the value of the estate.
Estate Administration Tax is payable on the value of the estate of a deceased person as of the date of their death, for estates valued over $50,000.
For estates valued over $50,000, the Estate Administration Tax will be calculated as $15 for every $1,000 (or part thereof) of the value of the estate. Estate Administration Tax can be calculated using the calculator provided on this Ministry of the Attorney General webpage.
Service of Documents
Pursuant to Rule 74.1.03(3) of the Rules of Civil Procedure, “the applicant shall send or give the following documents to each person entitled to share in the distribution of the estate, including charities and contingent beneficiaries:
- A copy of the application for a small estate certificate (Form 74.1A) and of any attachments.
- If there is a will, a copy of the will and of any codicils.”
It’s important to note that pursuant to Rule 74.1.03(4) of the Rules of Civil Procedure, “if a person who is entitled to share in the distribution of the estate is less than 18 years of age, the documents listed in subrule (3) shall not be sent to the person but shall instead be sent or given to a parent or guardian and to the Children’s Lawyer.”
Further, a copy of the application and a copy of the will and codicil (if applicable) may need to be provided to Office of the Public Guardian and Trustee.
Detailed information in respect of “Small Estates” and the process of applying for probate of a “Small Estate” can be found in Rule 74 of the Rules of Civil Procedure.
Please note, the above-noted information has been provided for informational purposes only and is not legal advice. For more information, please reach out to one of our team members who will be happy to assist you.
Thank you for reading.
The practice of law has evolved greatly over the last few months, especially in the area of Estates.
One of the more recent changes comes with the revocation of O.Reg. 129/20: Signatures in Wills and Powers of Attorney and the amendments to the Substitute Decisions Act and the Succession Law Reform Act.
As of May 20, 2021, there is a requirement for the signatures and subscriptions on Wills or Powers of Attorney, executed using audio-visual communication technology, to be made contemporaneously. An acceptable manner of meeting this requirement is for the signatures and subscriptions to be made by signing or subscribing complete, identical copies of the Will or Power of Attorney in counterpart, which together constitute the entire document.
“Audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.
Under section 3.1(2) of the Substitute Decisions Act,
(2) A requirement under this Act that a power of attorney be executed in the presence of witnesses may be satisfied through the use of audio-visual communication technology, if,
(a) at least one person who is acting as a witness is a licensee within the meaning of the Law Society Act at the time;
(b) the signatures required by this Act are contemporaneously made; and
(c) the prescribed requirements, if any, are met.
Section 3.1(3) clarifies that SDA “for the purposes of clause (2)(b), the signatures required by this Act may, subject to any prescribed requirements, be made by signing complete, identical copies of the power of attorney in counterpart, which shall together constitute the power of attorney.”
Similarly, under section 4(2) of the Succession Law Reform Act,
(2) Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
Section 4(3) clarifies that while the use of audio-visual communication technology is permitted to satisfy the requirement in section 4(2)(b) or (c), the following requirements must be met:
(a) at least one person who acts as a witness is a licensee within the meaning of the Law Society Act at the time;
(b) the making or acknowledgment of the signature and the subscribing of the will are contemporaneous; and
(c) the requirements specified by the regulations made under subsection (7), if any, are met.
Further, section 4(4) notes that “for the purposes of clause (3) (b), signatures and subscriptions required to be made under clause (2) (b) or (c) may, subject to any requirements specified by the regulations made under subsection (7), be made by signing or subscribing complete, identical copies of the will in counterpart, which shall together constitute the will.”
Thank you for reading.
When a deceased’s capacity is called into question, medical and legal records are generally a key source of evidence. Having said that, courts will not allow parties to go on a “fishing expedition” with respect to production orders. This issue was recently considered in the case of Young v. Prychitko, 2021 ONSC 3150.
In this decision, the deceased executed his last Will on September 2, 2020 (the “2020 Will“), which provided for the majority of his estate, totalling approximately $500,000, to be distributed to his son, the applicant in the proceeding. The deceased’s daughter, the respondent, filed a Notice of Objection to the 2020 Will, alleging that the deceased lacked capacity and was subject to undue influence at the time of execution. Accordingly, the respondent sought an order for the production of the deceased’s testamentary documents, including his medical, financial and legal records. The applicant argued that the respondent failed to meet the evidentiary threshold to require the production of the aforementioned documents and, as a result, his position was that the order would be premature. Having said that, the applicant’s proposed timetable afforded the respondent with the opportunity to file further evidence in support of her objection at a later time.
In its decision, the court held that, prior to compelling the production of certain documents, it must be satisfied that the evidentiary threshold has been met. This minimal evidentiary threshold, as discussed in Neuberger Estate v. York, 2016 ONCA 191, protects against needless expense and litigation. This is particularly important in the case of small estates, as the costs involved in seeking productions may be disproportionate to the size of the estate. In its analysis, the court considered the following questions:
1) When can someone with an interest in an estate compel the propounder of the Will to prove it in solemn form?
2) How does someone satisfy the above test?
3) If the test is not yet met, what procedure should be followed moving forward?
The court stressed that simply alleging incapacity or undue influence is not enough. Even if there is some evidence to support this point, the court must assess whether the propounder can sufficiently answer the evidence.
In the end, the court held that the respondent’s evidentiary record was insufficient. As such, compelling the production of medical, legal, and financial records at this early stage was determined to be premature and would ultimately be “countenancing a fishing expedition.” The course proposed by the applicant was held to be the most prudent.
Thanks for reading! Have a wonderful day,
Suzana Popovic-Montag & Tori Joseph
Hull on Estates #614 – Validity of a Handwritten Will and Appointment of an Estate Trustee in Conflict
This week on Hull on Estates, Doreen So and Arielle Di Iulio discuss the recent decision of Langrandeur Estate (Re), 2021 ONSC 3447, where the court addresses the validity of a will containing both typewritten and handwritten instructions, and the appointment of an estate trustee in conflict with the estate’s potential beneficiaries.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.