This week on Hull on Estates, Jonathon Kappy and Stuart Clark discuss Quinn Estate v. Rydland, 2019 BCCA 91, and the concept of “pour over clauses” more generally and whether you can leave a bequest in a Will to an already existing inter vivos trust.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
In response to the COVID-19 pandemic, the Ontario government enacted O. Reg. 129/20 (the “Regulation”), which allows for the remote execution of wills and powers of attorney using video conferencing and counterpart. The Regulation was effective as of April 22, 2020 and was recently extended until September 22, 2020.
In light of the above, we can presume that many of the wills executed over the past five months were done using video conferencing. According to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, the Regulation may be extended by further orders up to July 24, 2021. Thus, it is possible that the remote execution of wills may continue in the weeks to come.
As with all client meetings, the execution of a will using video conferencing should be well-documented. In most cases, the attendees of a video conference have the option to record both the audio and visual of the meeting. Thus, those who seek a more comprehensive account of the virtual meeting might consider recording the video conference. For information on the benefits and risks of recording client meetings using virtual communication technologies, such as a will signing by video conference, you can visit the Law Society’s COVID-19 Practice Management FAQs.
In the event of a challenge to the will, any video recording of the will signing that may exist will likely be producible documentation. This recording has the potential to be a crucial piece of evidence in the dispute. First, the recording can be used to show that the requirements for due execution of the will have been complied with. To the extent that the testator commented on the dispositions made in their will during the will signing meeting, the video recording may also assist in confirming the testator’s wishes and providing a rationale for their testamentary choices. A video recording could also help demonstrate that the testator was of sound mind at the time they signed their will.
However, it is also important to note that any video recording of the will signing will probably be heavily scrutinized by the person challenging the will. Any behaviour displayed by the testator that could be perceived as hesitation, uncertainty, forgetfulness, or misunderstanding could potentially be used to undermine the validity of the will. As such, depending on the idiosyncrasies of the testator, and how they react to being on camera, retaining a video record of the execution of the will might not be especially helpful in warding off challenges to the will.
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According to TheFreeDictionary.com, the idiom, “there’s no time like the present” dates back to 1562, and with the state of the world as it is, many people it seems, are scrambling to create Wills as soon as the present allows it.
Will planning requires honesty and is often regarded as an emotionally draining chore. While the drafting of a Will is, as the Romans would say, a Memento mori (a reminder of our mortality), it need not be a sad or troubling task. Planning for one’s estate can be much like the ultimate holiday shopping list. A Will allows us to make sure a treasured possession goes to the right person, and it ensures that our loved ones are provided for, in line with our wishes. Much like insurance, a Will can be thought of as preparing for the worst-case scenario. It can be thought of, particularly in times of strife, as a way to be of service to those people and organizations that we hold dear. “Yet,” as my grandmother would say, “there can always be a little room for whimsy.”
“To my nephew Phillip who wanted to be in the Will, “hello you’re in the Will.”
In a 2015 collection of the “Strangest Wills of All Time,” The Guardian UK compiled 10 Will provisions where, they said, “the temptation to cause mischief or raise a smile from beyond the grave was too much to resist.” Here are but two examples.
After legendary comedian Jack Benny died in 1974, his widow, Mary Livingstone had a single red rose delivered to her every day. She would later learn that Jack had provided for flowers in his will. “A single red rose, delivered to Ms. Livingstone, for the rest of her life.”
When Roger Brown of Whales died in 2013, he left his seven closest friends, friends of 40 years, a bequest of £3,500 with the proviso that they go on a European holiday, and raise a glass together.
While a Last Will and Testament is a serious document that ought to be treated as such, it does not have to be a dreary and dark affair, where all we think about is death and endings.
It is, after all, but one more way to look out for each other.
Thanks for reading,
Suzana Popovic-Montag and Daniel Enright
The Ontario government has recently announced which orders currently in force under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA) have been extended, and which will end. Under ROA, orders can be extended for up to 30 days at a time.
The Limitation Periods order will end and suspended time periods will resume running on September 14, 2020.
O. Reg. 129/20, which allows for the temporary virtual and counterpart execution of Wills and Powers of Attorney, has been extended until September 22, 2020. For a full list of orders under the ROA which have been extended, please see here.
For more information and resources on witnessing and executing Wills and Powers of Attorney virtually and in counterpart, please see our COVID-19 Wills & Estate Planning resource page, here, or the eState Planner blog, here.
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In Hubschi Estate 2019 BCSC 2040, it was found that the notation left on a computer by the deceased was sufficient to be ordered as his valid electronic will.
Mr. Justice Armstrong reviews the facts and the law in a sixteen-page decision which includes the following paragraphs edited for brevity:
On Mr. Hubschi’s death, his family did not find a will meeting the requirements of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (WESA). His family did, however, find a document/record on a computer in his home indicating as follows:
“Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg, Annette or Trevor as executor”.
The document does not meet the formal requirements of the Wills Estates and Succession Act (WESA). The issue on this application is whether the document can be cured, pursuant to s. 58 of WESA. If the document can be cured, Mr. Hubschi’s significant assets will be distributed to the foster siblings he grew up with in accordance with the intentions set out in the document. If the document cannot be cured, Mr. Hubschi has died intestate, and his assets will be distributed, in accordance with s. 23 of WESA, to blood relatives in Switzerland with whom he had no relationship.
Although the words in his computer record contemplate preparation of a formal will at some time in the future, I conclude that Mr. Hubschi’s testamentary intentions were reflected at the time he created the computer entry and when he reviewed the document on the day he died…
Thus, although the deceased’s words are noncompliant with the provisions in WESA, I conclude that it was the deceased’s testamentary intention that his estate should be divided by “A 5 – way split for remaining brother and sisters.”
I order that the document prepared by Mr. Hubschi will be fully effective as though it had been made as the testamentary intention of Mr. Hubschi and that probate of the will be granted to Gregory Kenneth Stack on the basis each of the Stack children will receive a one-fifth interest in his estate.
It should be noted that, at present, the governing legislation in Ontario is significantly different than in British Columbia. In Ontario, laws would not allow the judge the discretion to make a decision like this. Ontario is a “strict compliance” jurisdiction, and the note left by the deceased on his computer would not be a valid will. In Ontario, the result would have been an intestacy. Then the Office of Public Guardian and Trustee of Ontario would likely distribute the estate to the legal heirs in Switzerland. This was clearly not the result the deceased had intended as he had been given for adoption by his mother at birth and had no contact with his blood relations in Switzerland. It was his foster siblings who he had lived with all of his life, and he wanted to leave his estate to them on his death.
In this particular case, it would appear that the discretion provided by the “substantial compliance” legislation in British Columbia has resulted in a more just result than that of Ontario’s “strict compliance” legislation.
Thank you for reading!
Few histories are as rich and riveting as the history of Ancient Rome, from the uncertain rise of the Roman Republic to the terrible civil wars that brought its ruin, and from the mad reigns of all-powerful Caesars to the eventual collapse of the Roman Empire, owing, generally, to invasions from without and corruption from within. Its history also shows us many of the roots of our legal traditions, including – as will be the focus of this blog – some precursors to modern-day estates law.
“It was customary with the Romans of that age, when they were moving into battle array, and were on the point of taking up their bucklers, and girding their coats about them, to make at the same time an unwritten will, or verbal testament, and to name who should be their heirs, in the hearing of three or four witnesses.”
Ontario’s Succession Law Reform Act only requires two witnesses for proper execution of a will (section 4), although soldiers on active service may proceed by writing their wills without witnesses (section 5).
In Ontario, we have instruments at our disposal to prevent or reverse dispositions tainted by incapacity. One may challenge an incapable testator’s will, or one may pre-empt abuse or needless loss with a guardianship application. In Ancient Rome, similarly, those individuals who attempted to give away everything they possessed (what we might call a “spendthrift” the Romans called a “prodigus”) were dealt with as though they suffered from a distemper of the mind.
Under Augustus – of whom it was justly said that he “made a desert and called it peace” – an inheritance tax of 5% was introduced (with some restrictions, such as that it applied only to well-off individuals). A little over a century later, the Emperor Severus increased this inheritance imposition to 10%. While these figures may seem high (or not high enough, depending on where you stand), they may be much lower than inheritance taxes elsewhere, such as in the United States, United Kingdom, France, Japan and South Korea. In Ontario we do not have an inheritance tax, but there are inheritance-like taxes, like capital gains taxes and probate taxes.
There is a marked difference between Ancient Rome and our common law system with respect to gifting between spouses. Unlike modern Ontario, wherein couples often use joint tenancy as a tax-saving estates planning strategy, Roman spouses were prohibited from gifting to one another. While the rationale for this law is moot, it was likely intended to keep apart the property of each spouse’s bloodline.
The Romans, as well as their civil-law descendants of today, operated under what has become known as “forced heirship”, whereby testators are legally required to give to their children. As a previous blog notes, in modern France, a parent with one child must give that child one-half of his or her property. In Rome, the historian Gibbon says that “if the father bequeathed to his son the fourth part of his estate, he removed all ground of legal complaint”. This is in stark contrast to the common law, in which testators may plan their estates with near-total freedom.
Thank you for reading and enjoy the rest of your day!
Suzana Popovic-Montag & Devin McMurtry
This week on Hull on Estates, Noah Weisberg and Sydney Osmar discuss Notices of Objection, Rule 25.11, and the court’s decision in Dessisa and Wolde v Demisie.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
In response to issues arising in the execution of Wills during the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney. Ontario Regulation 129/20. made under the Emergency Management and Civil Protection Act provided that the requirement that a testator or witness be present in each other’s presence for the making of a Will or Power of Attorney may be satisfied by means of audio-visual communication technology, with certain restrictions. See our blog on the virtual witnessing of Wills and Powers of Attorney, here.
Under the Reopening Ontario (A Flexible Response to COVID-19) Act (“the Reopening Ontario Act”), Orders made under the Emergency Management and Civil Protection Act that have not been previously revoked are extended and continued under the Reopening Ontario Act. The extension is for a period of 30 days after the Order is continued, subject to further extension.
The new Order, Ontario Regulation 129/20 formerly made under the Emergency Management and Civil Protection Act, but now continued under the Reopening Ontario Act can be found here.
The Reopening Ontario Act received Royal assent on July 21, 2020 and came into effect on July 24, 2020.
The power to extend or amend an Order ceases on the first anniversary of the day orders are continued (ie. July 24, 2021).
This would mean that the virtual witnessing of Wills and Powers of Attorney is extended until August 23, 2020, with the government having the power to further extend the provisions.
We will keep you posted.
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A recent decision of the Alberta Court of Queen’s Bench highlights the importance of carefully reviewing settlement agreements prior to their execution.
In Anderson Estate (Re), 2020 ABQB 428, the Alberta Court of Queen’s Bench revisited a settlement that had been negotiated during a judicial mediation.
Mr. Anderson had left a Last Will and Testament executed roughly one month prior to his death that directed that the residue of his estate be distributed to his three children, who were the parties to the litigation. The Will addressed certain advances made to his children during his lifetime, the disposition of real property, and declared the testator’s intent that the parties be treated equally.
One son, who later brought the motion with respect to the interpretation of the agreement, had previously disclaimed real property gifted to him under the Will because the value assigned to the property in the Will itself was significantly higher than the appraised value of the property (with a discrepancy of $2 million), such that he would take a correspondingly lower distribution from the residue of the estate to reflect his acceptance of the gifted property. The judicial mediation process had been initiated with the intention of resolving interpretation issues in respect of the Will arising from the son’s disclaimer of the property. The terms of the Will and the settlement agreement were not straightforward, but the settlement provided in part that the son would receive at a value of $4 million a different property than that bequeathed to him under the Will that he had disclaimed.
Pursuant to the terms of the settlement agreement, the matter returned to the case management judge for the determination of its proper interpretation. The son sought an interpretation of the agreement that provided that he had substituted his receipt of one property for the other at a notional cost corresponding to advances tied to the first property.
Justice Jones reviewed the law in general relating to ambiguities appearing in contracts, such as the settlement agreement that the parties had executed (at paragraphs 35 through 40, briefly summarized below):
- true legal ambiguity arises where a phrase is reasonably susceptible on its face to more than one meaning;
- courts can consider surrounding circumstances that include everything that affected the language of the document from the perspective of a reasonable person;
- extrinsic evidence, however, is intended to serve “as an objective interpretative aid to determine the meaning of the words the parties used”, with limitations set out by the Alberta Court of Appeal in Hole v Hole, 2016 ABCA 34;
- the goal of the courts is to give effect to the objective intentions of the parties, rather than to “second-guess the contract”;
- even in the absence of ambiguity, a judge is to consider relevant surrounding circumstances in interpreting the contract.
The judge found that the settlement agreement was not susceptible to more than one meaning, stating as follows (at para 84):
A retrospective determination that one entered into an agreement on terms less commercially favourable that one now thinks should have prevailed does not evidence ambiguity.
This decision may serve as a reminder to take care in ensuring that the meaning of a settlement agreement is properly understood by all parties and clearly set out without room for ambiguity. Remaining silent on certain points that should properly be addressed during the dispute resolution process may limit the rights of the parties to pursue them, even where the settlement agreement will otherwise lead to the distribution of an estate that may be perceived as unfair.
Thank you for reading.
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.