Locating a Will after death can often be a challenge. Fortunately, the Law Society of Ontario (“LSO”) has resources that can assist with this task. The LSO maintains a resource page with advice on how to locate a Will. Some of the tips include:
- Contacting the lawyer or paralegal who may have prepared the Will directly. The LSO has a lawyer and paralegal directory that can assist by providing information about current lawyers and paralegals. (However, this route can only assist if the lawyer or paralegal who prepared the Will is known.)
- Search the court to see if the Will was deposited with the court. (However, experience tells us that very few Wills are deposited with the court.)
- Search Willcheck.ca or NoticeConnect to see if they have a record of the Will. The benefit of a search through NoticeConnect is that they can send a notice to their mailing list of lawyers and paralegals asking about knowledge of a particular Will.
- Contact the LSO. They may be able to assist in locating a Will prepared by a former lawyer or paralegal.
The LSO has prepared an infographic setting out steps that can be taken to locate a will.
As always, foresight is the best practice. After a Will has been drafted, it is always advisable for the testator to communicate with the named estate trustee(s) to advise them of the location of the Will. After all, there is little benefit to a careful estate plan if the Will cannot be readily located. Telling the estate trustee where this important document can be found can make the already difficult job of being an estate trustee a little easier.
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A recently released report by Johan David Michels, Sharon Hartung and Christopher Millard entitled “Digital Assets: A Call to Action” identifies significant difficulties faced by estates, estate trustees, planners, beneficiaries and their solicitors in dealing with digital assets.
The authors surveyed over 500 members of the Society of Trust and Estate Practitioners (“STEP”) around the world.
The key findings of the report are:
- Digital assets have become a common part of modern estate planning and estate administration, with demand for advice expected to increase significantly in the future.
- Clients seeking digital asset advice in relation to both estate planning and estate administration, with social media and email accounts topping the list of most-asked-about assets.
- Clients frequently experience difficulty accessing digital assets on death or incapacity of a family member, causing distress and frustration.
- Third-party service providers can present practical, procedural and legal obstructions to both estate planning and estate administration.
- There is wide variation in policies, practices and tools for dealing with clients’ digital assets, highlighting the need for more education for practitioners on best practices.
- Law reform is needed to enable effective estate planning and estate administration for digital assets.
The report concludes with a call to action. “Accessing digital assets after a loved one’s death can pose a challenge. As digital assets become more prevalent and our lives become increasingly entwined with digital technologies, the need for effective solutions becomes ever more critical. These solutions require a joint response. Bodies such as STEP and its members need to engage with governments and service providers globally in order to produce industry solutions and best practices that will help families plan for their futures with certainty and clarity.
The report also contains links to useful resources for practitioners dealing with digital asset issues.
Thank you for reading.
In Lipiec v. Lipiec, 2021 ONSC 6292 (CanLII) the court ordered on September 22, 2021, that the original will be produced by the deceased’s second wife to the son of the deceased.
In Szabo Estate v. Adelson, 2007 CanLII 4588 (ON SC) the former solicitor for an estate was allowed to assert a solicitor’s lien over the original of a deceased’s will for payment of legal fees.
In Polten & Associates v Resch, 2015 ONSC 3930 (CanLII) the court ruled on the claim for a solicitor’s lien after the original will had been released, and found against the claim by the lawyer as follows:
“It is the position of Mr. Polten that his law firm has a solicitor’s lien over the Estate assets, “including those assets which appear to have been deliberately excluded from Resch’s calculation of the undistributed Estate proceeds.” And further that, the Polten law firm “did not withhold the Will through the exertion of a solicitor’s lien” and it should now be paid its outstanding fees “for reasons including the lien it could have then claimed, and has now in fact claimed as part of the process leading to this motion….” .
Mr. Justice J.B. Shaughnessy ruled, “I reject Mr. Polten’s argument that he has a solicitor’s lien and that this constitutes a financial interest in the estate.”
In summary, it appears that a lawyer can assert a solicitor’s lien on an original will for unpaid legal fees and can do so by retaining possession of the original will until the matter is dealt with by the court or the claim is otherwise resolved.
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For those animal lovers amongst us, the recent decision of the Supreme Court of British Columbia in Henderson v Myler may have caught your eye.
Setting out a plan in your estate for beloved pets is not uncommon and a reasonable step to take for your furry friend. At times, in the midst of the enthusiasm to ensure pets are looked after, one can get carried away, and the courts may step in to impose a modicum of reasonableness.
In the present case, the testatrix, Eleena Murray (“Mrs. Murray”), died in late 2017, leaving a will dated January, 2013 (the “2013 Will”), providing a few named relatives small specific bequests, and the residue in its entirety, totalling approximately $1.8 million, to the BC Society for the Prevention of Cruelty to Animals (the “SPCA”).
The dispute arose from an unsigned note from 2017 (the “Note”), found in Mrs. Murray’s safety deposit box. The Note, if valid, indicated that she intended to increase the amount of some of the specific bequests, delete others, and reduce the gift to the SPCA to the specific amount of $100,000.00. However, following Mrs. Murray’s death, her home was sold, and the value of the estate was found to be significantly larger than initially thought. If the estate was distributed under the terms of the Note, there would be $1.4 million passing under a partial intestacy.
In her decision, Madam Justice MacNaughton stated: “Ms. Murray had no immediate family. It is entirely possible that she chose to benefit a charity that reflected her love of animals as opposed to extended family members … The question is what Ms. Murray subjectively intended, not what an average person would choose to do with their estate.”
While the size of the gift to the SPCA in the 2013 Will was unusually generous, the Court emphasized that a divergence from “the average testamentary gift” was not a determinative factor. The Court looked to Mrs. Murray’s personality and lifestyle, and found that, while the gift to the SPCA in the 2013 Will was unusual in a normative sense, it was consistent with her character and actions in life.
Further, considering the inconsistencies in the handwriting of the Note, and the lack of a residuary clause, the Court found that the Note was not effective as a codicil or alteration to the 2013 Will.
In Ontario, handwritten wills and alterations are governed by the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), and more specifically for the latter, section 18. The requirements can seem relatively straightforward – the document must be signed by the testator and be entirely in their handwriting. However, as witnesses are not required, the circumstances around the execution can often be uncertain, opening the door to potential litigation.
If you are planning on writing a holographic will, and have doubts or questions, it may be wise to consult with a lawyer.
Thank you for reading and have a great day!
Suzana Popovic-Montag & Raphael Leitz
Section 9 of the Estates Act provides a broad discretion for the Court to order production of a testamentary instrument. On September 22, 2021, in Lipiec v. Lipiec, 2021 ONSC 6292, the court ordered that the original will be produced by the deceased’s second wife to the son of the deceased, even if the will was not going to be probated and even if there was no action commenced.
But, can the former solicitor for an estate assert a solicitor’s lien for payment of legal fees over the original of a deceased’s will, or is the will exempt from lien?
In Szabo Estate v. Adelson, 2007 CanLII 4588 (ON SC) the application dealt with this very narrow issue and Justice D. Brown, as he then was, decided:
“I think it is appropriate to exercise my discretion under section 9(1) of the Estates Act to require Mr. Kligerman to deliver up the will to Ms. Hegedus so that the administration of the estate may proceed.
Mr. Kligerman need not do so until Ms. Hegedus consents to a charge against the estate of Gizella Szabo in the amount of Mr. Kligerman’s account dated January 8, 2004, together with accrued interest.
Until Ms. Hegedus gives such consent, Mr. Kligerman may maintain his lien over the original will.”
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On September 22, 2021, in Lipiec v. Lipiec, 2021 ONSC 6292, the court ordered that the original will of the deceased be produced – as indicated in the edited reasons that follow below:
This is a motion for the disclosure of the complete will of the deceased. The Plaintiff in this action is the son of the deceased by his first marriage. The Defendant is the deceased’s second wife.
Under the deceased’s will, the son was to have received a legacy of $20,000.00. However, he may dispute both the will and the legacy that he has received, as he believes he was promised more by the deceased. He seeks production of the will.
Counsel for the Defendant argues that the will should not be produced as it is not going to be probated. There are no assets in the estate because everything passed by way of joint right of survivorship.
Section 9 of the Estates Act provides a broad discretion for the Court to order production of a testamentary instrument. This discretion is not dependent on a lawsuit being pending before the Court.
In this case, the Plaintiff is mentioned in the will. The Defendant’s argument that the document should not be produced because it does not matter is without merit. The Plaintiff is entitled to satisfy himself as to what the will contains, and he is clearly a party with a potential interest in the estate. It may also be open to the Plaintiff to argue that the will should be set aside, depending on the contents of the will.
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A decision this week out of the Ontario Court of Appeal emphasizes the need for standing in order to be allowed to proceed with a will challenge.
In Moses v. Moses, 2021 ONCA 662 (CanLII), a son challenged the validity of his father’s 2019 Will. The son was not provided for in the 2019 Will, and the son challenged its validity based on undue influence. However, the father had a prior Will from 1996, which also did not provide for the son. The application judge dismissed the will challenge on the basis that the son lacked standing. Even if the 2019 Will was invalid, the son would not take under the estate due to the 1996 Will.”
The son argued that the question of the validity of the 1996 Will “would be determined at a later date, if necessary”. The application judge and the Court of Appeal disagreed. The Court of Appeal stated that “there was an onus on the [son] to adduce some evidence to call into question the considerable body of evidence adduced by the respondent to establish the validity of the 1996 Will.”
The son also argued that he had a claim against the estate for proprietary estoppel, and that because of this, s. 23 of the Estates Act gave him standing to challenge the Wills. Section 23 provides:
Citation of persons interested
23 Where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed, all persons having or pretending to have an interest in the property affected by the will may, subject to this Act and to the rules of court, be summoned to see the proceeding and may be permitted to become parties, subject to such rules and to the discretion of the court.
The Court of Appeal rejected this argument, accepting the application judge’s finding that the outcome of the son’s claim against the estate did not in any way depend on the validity of the 2019 Will, and thus s. 23 did not give the son standing to challenge the 2019 Will. Further, s. 23 is discretionary, and the Court of Appeal found no error in the application judge’s exercise of discretion.
When considering a will challenge, one must consider standing. Where will I be if I am successful in setting aside the will? If I can be successful on the will challenge but still not in the chips, I may not be allowed to proceed.
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Earlier this year, the CEO of Scholastic Inc., M. Richard Robinson Jr., unexpectedly died leaving his family and many others shocked about his succession plans.
Scholastic Inc. is the publishing house behind many well-loved children’s books, including The Magic School Bus, Goosebumps, and Captain Underpants. It also published the cult-classics Harry Potter and The Hunger Games, contributing to the $1.2 billion company valuation.
Scholastic Inc. was founded by Mr. Robinson’s father and so naturally his two sons, John, 34, and Maurice, 25, expected to inherit the family business. However, they must have been surprised when the contents of their late father’s Will were eventually revealed.
Mr. Robinson left all of his personal possessions and control of Scholastic Inc. to Iole Lucchese, the company’s chief strategy officer.
Having never discussed testamentary intentions, the sons were left with virtually nothing, not even an explanation. Both sons were perplexed upon the revelation, not being able to understand why their father made the decision to cut them out of his Will, especially since they had actively been in each others’ lives.
Their mother and Mr. Robinson’s ex-wife, Helen Benham, was also disappointed, as she had worked for Scholastic Inc. for over 30 years and had rekindled an amicable relationship with Mr. Robinson prior to his death. Mr. Robinson had allegedly told Ms. Benham, “you care more about Scholastic than I do” on several occasions, so she must not have been prepared for the cold shoulder she received upon his death.
While it may be a difficult pill for Mr. Robinson’s family to swallow, given that the American succession laws will be applied, it is difficult to know how the lack of provisions made for his family will be treated. In Ontario, however, even if we may expect parents to leave behind something for their children, our succession laws do not require a parent to do so.
In Ontario, there is a strong emphasis on testamentary freedom and in many cases, therefore, individuals are not subject to any legal and moral obligation to provide for their family if they do not wish to. This was made clear in Verch Estate v. Weckwerth, where the Ontario Court of Appeal found that independent adult children who are excluded from their parents’ Will do not necessarily have grounds to make a moral claim against the estate. Courts typically only intervene when dependant spouses or children who were being supported prior to the death demonstrate that a testator failed to make adequate provision for their continued support after death. As a result, there is therefore no right of inheritance in Ontario.
While John and Maurice may plan to pursue legal action, it remains to be seen whether they will be successful or not.
Thanks for reading,
Ian Hull & Ekroop Sekhon
Cryptocurrencies, such as Bitcoin and Ethereum, have been surging in popularity. As our colleagues have written here and here, they have raised a variety of unique considerations in the context of estate planning. However, the underlying technology in cryptocurrencies, blockchain, has given rise to a variety of digital tools beyond cryptocurrency. “Smart contracts” are one of these.
Broadly speaking, blockchain allows blocks of information about transactions to be recorded and stored on a distributed ledger. This article provides a more detailed overview of blockchain for those interested. Smart contracts are an extension of blockchain. They are programs stored on blockchain that run when certain pre-determined conditions are met, thus automating the execution of an agreement. Since the steps in a smart contract are hard coded, failure to fulfill conditions as agreed upon, prevents any progression. When conditions are fulfilled, the blockchain is updated and the agreement proceeds.
Two of the main attractions of these smart contracts is that they can serve to accelerate the transaction by removing middle-men and add a high degree of certainty to the performance of an agreement based upon the pre-established terms.
These benefits, however, should be approached with caution. The basis for the certainty arising from smart contracts is that they are hard coded, and the blockchains on which they are built rely on encryption to prevent fraud. The same certainty which is a strength can be a weakness though, as it makes changing the terms of an agreement difficult, if not impossible, in some circumstances.
Businesses advertising smart contracts in the context of estate planning are becoming more common. Potentially removing the need for executors, lawyers and other intermediaries in the administration of an estate can sound very appealing from a cost perspective.
Having said that, one should bear in mind that the law and factual matrix of an estate can and often does vary over time. Certainty can become fatal inflexibility in the face of change. A change in the law or conditions around an estate may prevent the performance of a smart contract where the coded preconditions require an impossible or illegal action.
New technologies are often exciting, and no doubt can bring positive change, but they also bring unknown risks. An abundance of caution would be well advised when using novel tools like smart contracts.
Thank you for reading and have a great day!
Suzana Popovic-Montag & Raphael Leitz
The executor of an estate takes on many roles. For instance, they may be called on to handle funeral and burial arrangements. They may also submit the will to probate, requiring them to complete and file a number of forms with the court to prove that the will is valid and that they are the lawful executor. The executor must track down all the testator’s assets and liabilities, ensuring that all outstanding tax bills and estate expenses have been paid. They must also deal with multiple federal and provincial government officers for administrative tasks, such as cancelling the deceased’s driver’s licence, government benefits and other entitlements, along with preparing and filing the final income tax return. Once the estate’s finances are finalized, they have to turn their attention to the beneficiaries, dispersing money and property as the testator desired.
In short, there are significant responsibilities that can take up to a year, or more, to complete.
Because of this, many people name multiple executors when preparing their last Will and Testament. While there are some advantages to this approach, there are also serious drawbacks that must be considered.
To start, co-executors must agree on everything as they work together, so naming multiple executors can lead to delays and inconvenience. This is especially true if any of the co-executors live out of town or out of the province.
Let’s say a couple has three adult children. Mom and dad don’t want to play favourites, so they name all three children as executors. If the children work together harmoniously, they will have the estate wrapped up in a timely and efficient manner. However, this is often not the case.
Siblings grow apart as they get older, as different values and approaches to life develop. One might be great with numbers and dealing with officials, while another may be difficult when it comes to reaching a consensus and may not want to put in the time and effort required of an executor.
They could also be too busy with their job or family to devote the time to the myriad of tasks the position presents. Maybe they have moved away and cannot physically get to the bank and other offices to sign the required papers.
In these situations, it would be best for that person to renounce their appointment as co-executor by signing a renunciation form that can be included with the Will when applying for probate.
In cases of extreme disagreement amongst executors, one of them can ask the court to remove one or more of the other executors, allowing the estate to be settled without unwarranted delay.
Returning to our family with three children, it may be better for the parents to name just one as the executor, with the others listed as alternates. The executor doesn’t have to be the eldest of the siblings. A group conversation with all family members might lead to a consensus about who is best able to take on the role.
In some cases, it makes sense to name a family member and a financial professional as co-executors. The family member can look after the testator’s personal matters, while the financial professional turns their attention to more complex legal and financial tasks. This is an especially wise option if the deceased had significant business interests that must be managed, such as winding-up a corporation.
Every estate is different, presenting different drawbacks and benefits when considering if having co-executors makes sense. As a general rule of thumb, the main advantage of such an arrangement is that the workload and responsibilities are split up, creating a checks-and-balances mechanism since they have to jointly approve everything. Bringing in an outsider as an expert co-executor works well with complex estates.
The main drawback of co-executors is that they could delay the settling of the estate since they have to agree. It can also amplify resentment between family members, who already may be suspicious of the other’s motives. There is also joint liability – whether a decision was made together or not – which can create risks for both parties.
A better option in some cases is to name an alternate executor, who can step in if the testator’s first choice dies or is unable to fulfill their duties.
Thanks for reading – and have a great day,