If you’re a regular reader of obituaries, you’ve undoubtedly seen some creative writing touches in remembering a departed family member. While traditional obituaries are still the norm, humour seems to be creeping into more of these tributes – especially those written by the deceased person in advance and published upon their death. You’ll find some great examples here.
While creativity in obituary writing has few, if any, negative repercussions, the same isn’t true for creativity in the will drafting process. While Canadians generally enjoy wide testamentary freedom to dispose of their property in any manner, it’s not an absolute freedom. For example:
- Succession laws can require that your will provide financial support for those who are dependant on you, such as a spouse or minor children.
- Provisions in your will that are against public policy and offend societal values (such as gifts that are racist, sexist, or require someone to do something against their beliefs – or against the law) can also be set aside.
All to say, if you want to do something quirky or creative in your will, make sure you get legal advice before finalizing it. Here are a couple of examples that passed the test. They’re from other countries, but would likely pass the test in Canada as well.
Giving to strangers
In Portugal, Luis Carlos de Noronha Cabral da Camara was the son of an aristocrat, but had no family and few friends. When he wrote his will in 1988, he chose 70 strangers at random from the Lisbon phone directory to receive his fortune. When he died in 2001, the shocked strangers each received several thousand euros.
Careful when you open that next tube of Pringles
Frederick Baur was an American chemist who invented and patented Pringles potato chips and the innovative Pringles tube. He died in 2008 and had stipulated that his remains be buried in a Pringles tube. While Baur’s ashes exceeded the capacity of a single container, some of his remains were indeed placed in a Pringles tube and buried, along with the rest of his ashes in a more traditional urn.
So, by all means, have some fun with your will and your final requests. Just make sure your lawyer has given you the “two thumbs up” before you execute it.
Thanks for reading!
In Ontario, a Will has to be in writing and typically an original is required for probate to be granted. With the increase of the technological presence in the everyday life of a typical Canadian, the question remains, should electronic Wills be admitted to probate?
Clare E. Burns and Leandra Appugliesi wrote an interesting paper on this topic titled “There’s an App for that: E-Wills in Ontario” that argued for the development of a legislative scheme in Ontario that admits the possibility of electronic Wills.
In discussing this question, the experience of other jurisdictions was considered, including the United States and Australia.
In 2005, the State of Tennessee was the first American state to recognize the validity of a Will executed with an e-signature. In that particular case, the deceased prepared his Will on his computer and asked two of his neighbours to serve as witnesses. A computer-generated signature was affixed to the Will. Almost ten years later, in 2013, the State of Ohio admitted to probate a Will that was written in the deceased’s own handwriting and signed by him, on a tablet computer.
It appears that electronic Wills are most probably valid in Florida, Texas and California and consistent with existing legislation, though the legislation does not specifically contemplate electronic Wills. The State of Nevada, on the other hand, has specifically enacted legislation which expressly allows for the validity of electronic Wills.
Australia, in comparison to the United States, has managed the question of electronic Wills by making use of the “substantial compliance” legislation that exists in each state, which gives the state courts the authority to dispense with the formal requirements for the execution of the Will. In comparison, the legislation in Ontario is one of “strict compliance” such that the formalities of a Will are required before a Certificate of Appointment is granted.
It appears that in Ontario, though a Court could theoretically admit an electronic Will (i.e. not an original copy) to probate, the formalities in accordance with the Succession Law Reform Act must be met, in any event. As a result, an electronic Will that does not meet any one of the formalities will almost certainly not be admitted to probate.
As various electronic gadgets are now being used more and more, Canadians are also using them to make testamentary documents. In keeping with the realities of contemporary life, it may be that legislative reform is needed.
In discussing the possibility of legislative reform, Ms. Burns and Ms. Appugliesi, also addressed the importance of various policy considerations. In doing so, they addressed the John J. Langbein analysis, which set out four main purposes to the formalities requirements in any Wills legislation:
- Evidentiary: the writing, signature and attestation requirements serve as evidence of testamentary intent in a reliable and permanent form;
- Channeling: the writing, signature and attestation requirements ease the administrative burden on the court system by setting out a uniform checklist of what is required before probate can be granted;
- Cautionary: the formalities are designed to impress the seriousness of the testamentary act upon the testator so as to ensure that he or she has fully thought through the result of executing the Will; and
- Protective: the formalities are designed to reduce the opportunity for fraud and undue influence by involving witnesses in the process.
As litigators, the “evidentiary” and the “protective” purposes are particularly important, as we often consider questions of testamentary intent, undue influence and fraud (albeit more rarely), amongst other things.
From that perspective, any legislative amendments to be made must address the various policy considerations and the implications of any such amendments on the legal system in Ontario.
Thanks for reading!
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A recent decision of Justice Dunphy recounts the wonderful history of Toronto’s cemeteries which ultimately grew into the Mount Pleasant Group of Cemeteries.
The decision begins at the beginning:
Forty-one years before Canada was launched as a nation and six years before the City of Toronto was incorporated, Thomas Carfrae the younger, Peter McPhail and a number of other inhabitants of what was then known as the Town of York brought a petition to the Legislative Council of Upper Canada. York’s population had surged after the War of 1812. It was approaching 2,000 and was still growing. However, it had only a Catholic and an Anglican cemetery while people of all faiths were arriving daily. They had passed the hat at a number of public meetings and raised $300 – a sum of money sufficient to purchase six acres of land a mile outside of town at the northwest corner of Yonge and Bloor. Their goal: to purchase the land and hold it for the purpose of a “general burying ground, as well for strangers as for the inhabitants of the town, of whatever sect or denomination they may be”. They judged that due to the recent rapid growth of the town “and the small portions of ground … allotted for the purpose of cemeteries”, there was a need.
They judged correctly. Their petition to the Legislative Council of Upper Canada found favour and a statute named “An act to authorize certain persons therein named, and their successors, to hold certain lands for the purposes therein mentioned” was duly passed and received Royal Assent in 1826: Acts of U.C. 7 Geo. IV, c. 21. The land that came to be known as “Potters Field” was purchased and started operation as a cemetery soon afterwards.
The cemetery group became known as the Mount Pleasant Group of Cemeteries. It has grown to include 10 cemeteries, 4 crematoria, 14 mausoleums and 5 visitation centres on 1,222 acres of land containing the resting place of 600,000. The Mount Pleasant location arboretum is said to be “one of the finest tree collections in North America”. “Practically every tree that will grow in this climate is found here.”
The decision, Friends of Toronto Public Cemeteries Inc. v. Mount Pleasant Group of Cemeteries, 2018 ONSC 7711 (CanLII), relates to the current management of the cemeteries. Ultimately, Justice Dunphy found that the current trustees of the Mount Pleasant Group of Cemeteries were not appointed in accordance with the 1826 Act. He also found that some of the operations of Mount Pleasant Group of Cemeteries went beyond the scope of the statutory trust.
For a video account of the beginnings of Mount Pleasant Group of Cemeteries, click here.
For information about the Friends of Toronto Public Cemeteries, click here.
Thank you for reading.
We’re all too familiar with the conventional advice for living longer – and the same ol’, same ol’ is being trotted out again by scientists. A new study says that sticking to the following five things can prolong your life expectancy by more than a decade. The five things?
- Never smoke
- Maintain a healthy body-mass index
- Keep up moderate to vigorous exercise
- Don’t drink too much alcohol
- Eat a healthy diet
Any surprises? I didn’t think so. It feels predictable and a bit puritan for my tastes, but you can read more about the study here.
Offbeat tips for living longer
I much prefer these five tips for living a long life. The article here outlines 10, but these are the five that caught my eye.
- Work hard and be stressed
An 80-year study that began in 1921 followed a group of 1,500 children. Are you ready for this? Children who were happy-go-lucky, carefree, and had a good sense of humor lived shorter lives than those who were more serious, persistent and prudent. As adults, these people were the most involved with and committed to their jobs. Three cheers for the workaholic!
- Get rich
Wealth and long, healthy living are positively correlated all around the world, with poorer countries having predictably lower life expectancies. While you don’t need to be rich, money helps. There’s something to be said for playing the lotto.
- Learn a second language
Studies have shown that the ability to speak two or more languages significantly slows the onset of dementia and Alzheimer’s, both of which are fatal diseases of old age.
- Do good in the world
Many studies have shown that volunteering increases your life expectancy significantly, especially if you’re doing it for purely altruistic reasons.
- Live on a mountain
In the US, seven out of ten communities with the greatest longevity are in high-country Colorado counties. And in a mountain town on the Italian island of Sardinia, as many men as women live to be 100. Seek elevation, live longer.
So, if we combine these five tips, you’d live on a mountain working hard at a job that made you rich, while learning a second language and volunteering in your spare time. See you at my 100th birthday party!
Thanks for reading,
Rule 2.1 of the Ontario Rules of Civil Procedure is a powerful provision that allows a court to stay or a dismiss a proceeding if the proceeding “appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”.
In Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 (CanLLI), Justice Myers gave direction with respect to what should be contained in the request for a stay. The court suggested that a one or two line letter making the request for the referral of the matter to a judge is all that is required. No narrative or background facts or information should be provided. This is because:
- The abusive nature of the proceedings should be apparent on the face of the pleading itself;
- No evidence is admissible on the motion;
- Submissions of the requestor (defendant) are of little use;
- There will be less likelihood for the plaintiff to “see conspiracies”. The process will be more efficient and fairer in fact and in appearance.
If the defendant wishes to put in evidence or background information, then the preferred procedure might be to move for summary judgment under Rule 20, or to strike out a pleading under Rule 25.11.
However, in The Estate of Lois Jean Davey v. Craig, 2018 ONSC 7367 (CanLII), the Rule was applied to an application where a claim of constructive trust was brought by the Estate Trustee against the Estate Trustee and his former spouse related to an addition paid for by the Deceased. (The Estate Trustee, who was the Deceased’s son, and the former spouse were involved in family law litigation.) The Deceased’s will was filed as part of the application record. The will specifically provided that the addition shall be the sole property of the son, and that “the estate shall have no claim on said addition”. The court also appeared to rely on submissions suggesting that the issue was previously raised by the son, unsuccessfully, in the family law proceedings. The court found that the estate was estopped from making the claim in light of the express wording of the will. Further, the court held that the claim had no basis in fact or law. “One cannot give the gift, make clear evidence of that gift, and then recover the property using the law of unjust enrichment.” The application was dismissed with costs.
The decision demonstrates the powerful nature of the Rule. The application was dismissed with no formal motion being brought by the respondent, no apparent reply materials, no cross-examinations and no attendance by the parties.
Thank you for reading.
There’s a lot to like about Paul Allen – the Microsoft co-founder who died on October 15 at age 65. He was a brilliant man, whose perfect SAT score of 1600 during his college years foreshadowed his financial success.
Few can match this success. Allen died with an estate estimated at $26 billion. But it’s not just the size of the estate that’s impressive, it’s the scope of his interests that are remarkable, most of which played a role in building the value of his holdings. At his death, Allen ownership interests included:
- Three professional sports teams – the Seattle Seahawks, Portland Trail Blazers, and the Seattle Sounders
- A space-travel company, Vulcan Aerospace
- A film production company, Vulcan Productions
- A real estate company, Vulcan Real Estate, with a large focus on the redevelopment of land in the Seattle area; and
- An extensive fine art collection.
In 2010, he signed the Giving Pledge , a commitment by billionaires around the world to donate at least half of their fortune to philanthropic causes. He also invested in, or donated money to, a number of other initiatives, from artificial intelligence research to elephant conservation in Africa. More locally, he played in a band, Paul Allen and the Underthinkers, and was an accomplished guitar player.
The life lessons
Admittedly, we aren’t all billionaires with perfect SAT scores. So, what can we learn from Paul Allen? This quote from him says it all:
“You look at things you enjoy in your life, but much more important is what you can do to make the world a better place.”
Here are three takeaways that I think are worth considering:
- He enjoyed life: He owned homes in several countries, owned two of the largest yachts in the world, and surrounded himself with people accomplished in the art, sport and film world. He rarely courted media attention – and he remained low-key until the end – but he seemed to thoroughly enjoy his life. So many people in every wealth bracket forget this important part of the equation.
- He followed his interests in making the world a better place: He saved sports franchises from relocation, movie theatres from demolition, and ensured that important stories were preserved and told. He knew intuitively that following personal interests was critical to his active involvement in projects and ultimately each project’s success.
- Much of his focus was local: We can likely do our most effective work if we focus locally, on the area of the world we know best. Paul Allen’s initiatives certainly had a global reach, but many of his projects were Seattle-based and he transformed the city and the U.S. north-west in significant ways.
Paul Allen’s estate is, not surprisingly, complex – and could take years to settle as this article explains. But it appears that the family business structure he left behind will continue to make the world a better place for many years to come.
Happy New Year – and thanks for reading!
It is nearly a new year. It is during this time that we reflect on the past year, make goals for the upcoming year, and come across all sorts of ‘best of’ and ‘most popular’ rankings.
As such, I herewith present the most popular estate and trust cases from 2018, as decided solely by me (and without regard to any actual data):
- Moore v Sweet – the Supreme Court of Canada provided clarification regarding the juristic reason competent of the test for unjust enrichment, as well as confirmed the circumstances in which a constructive trust remedy is appropriate in the context of unjust enrichment.
- Re Milne Estate & Re Panda – In Re Milne (currently under appeal), the Superior Court of Justice found that multiple Wills were invalid where so-called ‘allocation clauses’ (also referred to as basket clauses) in the Wills provided the Estate Trustees with the discretion to determine which estate assets fell under which Will. Conversely, in Re Panda, the Superior Court of Justice declined to follow Re Milne and probated the Will notwithstanding the presence of an allocation clause. The Superior Court of Justice also addressed the roles of the court as either the ‘court of probate’ or ‘court of construction’ and whether a Will is a trust that is subject to the three certainties.
- Wall v Shaw – the Court of Appeal (sitting as the Divisional Court) held that there is no limitation period to objecting to accounts in an Application to Pass Accounts. The Court reasoned that a notice of objection does not commence a ‘proceeding’ for the purposes of section 4 of the Limitations Act.
- Seguin v Pearson – the Ontario Court of Appeal reiterated the different tests for undue influence that apply in the inter vivos and the testamentary context.
- Valard Construction Ltd. v. Bird Construction Co. – the Supreme Court of Canada found that a trustee had a fiduciary duty to disclose the terms of a trust (here, it was a bond) to the beneficiary, notwithstanding the fact that the express terms of the trust did not stipulate this requirement.
Thanks for reading!
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In 1934, Fred Coots co-wrote “Santa Claus is Comin’ to Town” with lyricist Haven Gillespie. The song went on to be one of the highest money-making songs of all time (so far). It has been performed by over 200 artists, including, most notably, Bruce Springsteen. The song is the basis for the 1970’s classic Christmas special of the same name.
Fred Coots died on April 8, 1985. Haven Gillespie died in 1975.
In 2015, after an eight year battle, the U.S. Second Circuit Court of Appeals held that the music rights should revert to the heirs of the Coots estate. They were previously sold to a musical publishing company. However, under U.S. copyright laws, songwriters have the right to terminate publishing contracts in certain circumstances. The Court of Appeal found that Coots had effectively given notice of the termination of the copyright, and that the copyright therefore would revert to the Coots heirs in 2016.
A similar lawsuit was commenced by the Gillespie family in 2017. The family sued the music publisher Memory Lane Music for royalties claimed to be owing to the Gillespie estate.
I don’t know about you, but I was a little disappointed when I discovered that one of the greatest thinkers of our time – Stephen Hawking – dismissed the notion of a life after death.
Hawking died in March 2018, which is when his previously noted thoughts on an afterlife began to resurface. He had lived with the possibility of an early death for nearly 50 years, so would be (in my opinion) highly motivated to believe in an afterlife. And yet, his conclusion was a simple one: no way.
I regard the brain as a computer which will stop working when its components fail … There is no heaven or afterlife for broken down computers; that is a fairy story for people afraid of the dark.
You can read more here.
Then there was hope
Of course, there are other smart science people in the world. And a little searching revealed that there were indeed others who believed there was a life after death.
Here’s a recent example. Researchers at the University of Southampton in the United Kingdom examined more than 2,000 people who suffered cardiac arrests at hospitals in the United Kingdom, the United States and Austria. The results? Nearly 40% of people who survived their resuscitation described some kind of awareness during the time when they were clinically dead. It’s the largest ever medical study into near-death and out-of-body experiences. It concluded that some awareness may continue even after the brain has shut down.
And just this year, some well-respected scientists affirmed their theory that quantum mechanics allows consciousness to live on following the body’s eventual demise. The theory is complicated, but the bottom line is that the physical universe we live in is only our “perception.” Once our bodies die, our soul continues in an infinite beyond. It’s worth a quick read.
I can’t say that I understand quantum mechanics, but I’m “all in” on their theory of an infinite soul. Bring it on.
Thanks for reading … Have a great day,
In the recent decision of Charles v. Charles Estate, 2018 ONSC 7327, the court discussed the interplay between a claim for interim support, and claims for equalization.
There, the Applicant was the deceased’s spouse of 22 years. There was some evidence that the Applicant and the deceased may have been separated prior to the deceased’s death.
Fifteen days before the deceased died, the deceased severed the joint tenancy on the matrimonial home and other properties, transferred certain properties to his son, liquidated various RRSPs, and drew money on a line of credit secured by the matrimonial home. He also changed his will to significantly reduce the bequests to the Applicant.
The Applicant commenced proceedings for an equalization under the Family Law Act, and to set aside various transactions entered into by the deceased just prior to his death. She also commenced a claim for dependant support.
In the court decision, the court addressed the Applicant’s claim for interim support.
In deciding whether to award interim support, the court considered whether the Applicant was in need of and entitled to support. Relying on the decision of Perkovic v. Marion Estate, 2008 CanLII 52315, the court stated that the test was:
- whether the claimant falls within a “qualifying relationship” under the Succession Law Reform Act;
- whether the deceased was providing support or was under a legal obligation to provide support immediately before his death;
- whether the deceased did not make adequate provision for the claimant’s support.
The burden is on the Applicant to satisfy each of the three elements necessary to obtain an order for interim support on an arguable or prima facie basis.
In Charles, the court found that the Applicant was not in need of support. She earned more income than the deceased, and was the primary provider for the household. There was no evidence that the economic circumstances of the Applicant had worsened to any significant extent since the date of death.
The court did, however, order that the estate pay the interest on the line of credit incurred by the deceased.
In concluding, the court stated that the Applicant’s claim for interim support was “conflated with her property based claims”. Those claims would continue. However, they did not entitle the Applicant to claim interim support. The court did not comment on the merits of such claims.
Thank you for reading.