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.
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Suzana Popovic-Montag and Celine Dookie
In Kirst Estate (Re), the Court of Queen’s Bench of Alberta had before it an interpretation case involving a holograph will of William Kirst (“K”). The will was a short handwritten document that divided the estate equally amongst K’s surviving children, with some qualifying language allowing Whitehorn (“W”), one of K’s children, to live in the family home. W had almost always lived in the home, which was the primary estate asset.
The phrase the Court was tasked with interpreting reads: “Whitehorn can live in the house for awhile, to be determined by Him and his brothers + sisters.”
The sole issue was the interpretation of the words “for awhile”.
The testimony of four of K’s children was considered (although ultimately of little assistance), with two of them believing K’s intention was that W remain in the house indefinitely, and the other two viewing their father’s intention as simply to permit W to stay in the home until he could get his affairs in order. As K discussed his estate with his children separately, each of them had his/her own understanding of K’s intentions. Notably, although K made the will in 1995, none of the kids had previously known about it or discussed its terms with K.
The Court cited and reviewed the following four general principles of interpretation recently set out by the Alberta Court of Appeal to assist in ascertaining K’s intention:
“First, a will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one.
Second, a court must read the entire will, just the same way an adjudicator interpreting a contract or a statute must read the whole contract or statute.
Third, a court must assume that the testator intended the words in the will to have their ordinary meaning in the absence of a compelling reason not to do so.
Fourth, a court may canvas extrinsic evidence to ascertain the testator’s intention.”
The Court concluded that it could determine K’s intention by giving the words in his will their natural and ordinary meaning, and, in so doing, it was satisfied that the intention was to allow W to stay in the home subject to an enforceable condition that he and his siblings agree on how long he can continue to live there. The Court further found that as the siblings could not agree, the condition had not been fulfilled, such that W’s entitlement has ended.
The circumstances in this case are unfortunate, as the siblings had apparently been involved in protracted litigation since K’s death in 2010, including a dispute over the validity of the will. Although holograph wills can be helpful estate planning tools, I wonder if these same contentious circumstances would have developed if K had made his will with effective legal advice.
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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 email@example.com
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For those who are about to enter, or are in the very midst of, a long and arduous legal dispute, beware the ineffaceable nature of social media activity. The sands of time might erode Rome and the Pyramids, but they will bounce off the public record of your impassioned posts and hyperbolic tweets. Keeping in mind that such evidence lasts forever, and is also readily accessible, devoid of context, and cheap to procure, litigants may be wise to keep their online communication to a minimum – lest they spoon-feed their opponents material that could later prove hamstringing and self-defeating.
In recent years there have been stories about criminals sharing their crimes with the world via Facebook Live. In family law, we have seen a support claimant attain more support by citing a payor’s lavish life on Instagram, and a father’s custody compromised by his errant Youtube video. In estates law, where there is often mystery and ambiguity involved with testamentary intention, and much of the evidence is “he-said-she-said” – in other words, uncorroborated parole evidence tainted by self-interest – parties scramble for whatever concrete material they can find, such as a screenshot of a social media tirade.
In one recent Ontario decision (Lyons v. Todd,  O.N.S.C. 2269), a man not only dragged out litigation against his sister, who was the estate trustee, but engaged in a campaign of harassment, menaces, and defamation – all of which the court was able to scrutinize with ease:
“The transcription of voice messages, copies of emails and other social media posts, establish that Bob threatened to make what he described as Victoria’s ‘perverted’ sex life public. He threatened to expose her to the clients of the Park and bankrupt her with the costs of litigation if she did not settle. With some of the Facebook posts, he posted the location of the Park.”
The court did not accept the man’s argument that the posts were unrelated to the proceedings, finding instead that the “gratuitous humiliation and embarrassment” the estate trustee suffered was a further reason for which she should receive the $60,000 in costs that she requested.
In Nova Scotia (Public Safety) v. Lee,  N.S.S.C. 71, a man came under the fire of CyberSCAN and the Director of Public Safety, which are government bodies mandated with the policing, punishment and prevention of cyberbullying. The man was purportedly vexed with his sister, who was the sole beneficiary of the mother’s will. The rambling posts were addressed to “anybody out there in Facebook land” and the “cowards in my family”, but in fact the speech was tantamount to a naked admission before a stern court.
The frustrated litigant or potential litigant who needs to vent would be safer, and likely more satisfied, by confiding his or her troubles to a friend in a private setting rather than airing from a veritable rooftop grievances which will echo for the end of time.
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Ian Hull and Devin McMurtry
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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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 firstname.lastname@example.org 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.
Thank you for reading.