In yesterday’s blog, I discussed the representation of unborn and unascertained parties in litigation in which their interests are affected. In such cases, the parties should obtain a representation order authorizing a chosen individual, or perhaps the Children’s Lawyer, to represent the interests of that unborn or unascertained person or class of persons. Today’s blog considers the opposite end of the litigation spectrum – settlement.
Rule 10 of the Rules of Civil Procedure empowers the court to appoint a representative to act on behalf of unborn and unascertained beneficiaries. Situations may arise in which such an appointment is not necessary at the outset of litigation, for example, where the unborn beneficiaries need not be named as parties, but which may become necessary to conclude a matter.
In particular, where the parties to litigation agree on terms of settlement, that settlement is subject to the approval of the court if it impacts the interests of a party under disability, such as a mi
nor. Similar principles apply to circumstances in which an unborn or unascertained beneficiary is not a party to a proceeding but is nonetheless “interested in the settlement” in accordance with Rule 10.01(3) of the Rules.
Rule 10.01(3) authorizes a party appointed by representation order to “assent to the settlement” entered into by the parties to the litigation. If the judge hearing the motion for court approval is satisfied that the settlement is “for the benefit of the interested persons who are not parties”, and the representative does, in fact, assent to that settlement, the court is empowered to approve the settlement on their behalf.
As a point of practice, although motions for court approval on behalf of parties under a disability have strict requirements as to the nature and content of the materials to be filed, there is no such strict requirement for approval motions brought pursuant to Rule 10. That said, parties bringing such motions would be well advised to comment on the benefits of settlement from the perspective of the unborn and unascertained beneficiaries in order to assist the court.
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Prudent estate planning techniques frequently lead a testator or settlor to contemplate gifts or distributions to alternative beneficiaries to whom they do not necessarily intend to convey an express interest.
Often, these gifts-over are made in contemplation of a particular condition coming to pass – for example, where the intended beneficiary predeceases the testator. Failing to account for such instances could result in a lapsed gift (subject to the applicability of the anti-lapse provisions at section 31 of the Succession Law Reform Act), a partial intestacy, or, more generally, the conveyance of an interest to a person that the testator did not intend to benefit.
Although gifts-over are generally granted in favour of individuals of the testator’s choice, to maximize their control over their estate, that need not be the case. Gifts-over may be made in favour of individuals who may not yet have been born, such as the issue or lineal descendants of a testator’s young grandchildren. When litigation that impacts the interests of these unborn or unascertained beneficiaries arises, the first questions that ought to come to a litigator’s mind are who should be appointed to act on their behalf, and how should that appointment be achieved?
One’s mind might immediately jump to the appointment of a litigation guardian. In the case of a beneficiary who is a minor, that would be correct. Pursuant to Rule 7 of the Rules of Civil Procedure, a party under disability (which would include a minor) must be represented by a litigation guardian. Furthermore, the Children’s Lawyer is the presumptive litigation guardian for all minors unless and until another individual files an affidavit following specific criteria set out at Rule 7.02.
However, where the interests of an unborn or unascertained person or class of persons is concerned, recent direction from the Children’s Lawyer suggests it is Rule 10, not Rule 7, that guides us. Rule 10.01 empowers a judge to appoint a person to represent “any person or class of persons who are unborn or unascertained” who have a present, future, contingent, or unascertained interest in the subject matter. Strictly speaking, an unborn or unascertained individual is not a person under disability or a minor as defined under the Rules, and so a litigation guardian, although filling a similar role as a representative, should not be appointed.
As a point of practice, a party seeking a representation order would be well advised to serve the Children’s Lawyer whether or not the applicant is seeking to have the Children’s Lawyer act as representative, or whether another individual is seeking that appointment. Although Rule 10 differs from Rule 7 in that the latter requires the Children’s Lawyer to have notice of any motion to appoint a litigation guardian while the former does not in the context of a representation order, it is nonetheless recommended that the Children’s Lawyer be given notice to ensure the interests of the unborn beneficiaries are appropriately represented.
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The Presidential election is in the news. Any linkage to wills and estate law would appear to be a difficult connection. Yet, the Last Will and Testament of the first President, George Washington, is interesting in several respects.
In his own orderly handwriting, the will shows the wisdom and depth of understanding his unique life experience gave him. It is a well thought out, personal, and intelligently written document, prepared by an obviously brilliant man who has taken caution to be humble. He prepared it on his own, or as he says, “… no professional character has been consulted, or has had any agency in the draught” of the will.
The will appoints executors, provides for the disposition of his estate, the care of his wife, the release of his slaves, charitable donations to orphans, and the support of education, among other testamentary instructions. George Washington was born on February 22, 1732, in Westmoreland County, Virginia, and died on December 14, 1799, at his home in Mount Vernon, Virginia. He had been the first President of the United States from April 30, 1789, to March 4, 1797.
It is interesting that the last paragraph of the will, written more than two hundred years ago, provides for an arbitration process:
“My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants each having the choice of one and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.”
His reference to the Supreme Court of the United States is also noteworthy. The court was created by Article III of the Constitution and was established by the 1st Congress through the Judiciary Act of 1789 consisting of the Chief Justice and five associate justices. The position of Chief Justice is the only position fixed by the Constitution. The number of justices is set by Congress and has been amended many times over more than two hundred and thirty years resulting in the current number of nine.
The complete text of the Last Will and Testament of George Washington can be found on many archival and historic websites. The original is housed in the safe of the Fairfax County Courthouse in Fairfax Virginia. It comprises 29 front and back handwritten pages and an additional 15 pages with a detailed property schedule.
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“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”
In December of 1963, as America mourned the assignation of John F. Kennedy, Birch Bayh , the young United States Senator from Terre Haute, Indiana, introduced an amendment to the Constitution aimed at curing its dangerously vague language on vice-presidential succession and presidential disability. One of the many contingencies it aimed to address was, what happens if the President is unable to discharge the powers and duties of his office?
With the recent hospitalization of the current President after his diagnosis of Covid-19, much of the water cooler buzz, the nightly news, and social media was atwitter with questions surrounding the 25th and whether it would be evoked.
Such declarations are rare, but not uncommon. Presidents Reagan and George H.W. Bush each transferred power using 25 during pre-planned surgeries. But while we do not know, as of yet, if the White House counsel drafted language affording the transfer of power to the Vice-President (albeit temporarily) were the President’s health to take a turn, it did get us thinking that such a document could be akin to the most important Power of Attorney in the world.
In Ontario, the subject of a living will often comes up in similar circumstances. But the term “living will” is not used in any formal way. We have written about living wills here in the past. A more common term is advance directive: a document that clearly outlines your treatment and personal care wishes.
But whether you call it a living will or advance directive, they are not the same as a Power of Attorney (POA): a legal document in which you name a specific person to make decisions on your behalf. While an advance directive can form part of your POA for personal care, so your attorney is aware of your wishes, it does not carry the same weight with the court.
Finally, while we may not know whether the president executed a document under the 25th Amendment or if one was even drafted, it is a good reminder that even if our own illness or temporary absence does not pose a national security risk, outlining our wishes about care is always a capital idea.
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Ian Hull and Daniel Enright
Recent reports suggest that divorce and separation rates are on the rise during the pandemic (with rates of separation cited as having increased as much as 20% to 57% from last year, depending on the jurisdiction). This has been in part attributed to the stresses of lockdown and worsening financial situations.
Many Canadians may not be fully aware of the legal impact that separation and divorce have upon an estate plan, mistakenly believing that there is no real difference between marriage and a common-law partnership. However, the distinction in Ontario remains important from an estate planning perspective – for example:
- A common-law or divorced spouse does not have any automatic rights upon the death of a spouse who does not leave a will, whereas married spouses take a preferential share and additional percentage of a predeceasing married spouse’s estate on an intestacy;
- A married spouse has the right to elect for an equalization of net family property pursuant to the Family Law Act on death, whereas common-law spouses have no equalization rights on death;
- Marriage automatically revokes a will (unless executed in contemplation of the marriage), whereas entering into a common-law relationship has no such impact; and
- Separation (in the absence of a Separation Agreement dealing with such issues) does not revoke a will or any gifts made to a separated spouse, whereas gifts under a will to a divorced spouse are typically revoked and the divorced spouse treated as having predeceased the testator.
While top of mind for estate lawyers, lawyers practising in other areas of law and their clients may not necessarily turn their minds to the implications that separation and divorce may have on an estate plan, particularly soon after separation and prior to a formal divorce. With the potential for family law proceedings to be delayed while courts may not yet be operating at full capacity, combined with elevated mortality rates among certain parts of the population during the pandemic, it may be especially worthwhile in the current circumstances to remind our clients of the importance of updating an estate plan following any material change in family circumstances, including a separation or divorce.
Thank you for reading and stay safe,
An exciting announcement (for those in the field of wills and estates) came out of the Superior Court of Justice on October 6, 2020. There has been an amendment to the Province-wide Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media which provides for the electronic filing by email of probate applications, supporting documents, and responding documents with the Superior Court of Justice.
The email address for the court location in which the materials will be filed can be located here.
With regard to filing by email, the amendment provides the following guidance:
- The application form and supporting documents (affidavits, consents, proof of death, etc.) should be submitted by email only;
- Original documents filed in support of the application (i.e. wills, codicils etc.) and certified copies must be filed in hard copy by mail or courier to the SCJ location where the application was filed or provided at the court office;
- Estate administration tax payments and any filing fees must be sent by mail or courier to the SCJ location or provided at the court office;
- Certificates of Appointment of Estate Trustee will be electronically issued and delivered by email to the address provided by the applicant; and
- Applicants must complete a new Information Form (located in the consolidated notice which is linked below) and email it to the court together with the probate application.
Probate applications filed prior to October 6, 2020 can be resubmitted to the court by email, which will allow Applicants to keep their place in the original queue while providing for the ability to receive electronic issuance of the Certificate of Appointment of Estate Trustee.
The amendment does not apply to estate litigation documents, which should continue to be filed through the Civil Submissions Online portal.
For further details on the amendment, including the new Information Form, and the SCJ’s specific requirements regarding the form of emails when filing for probate by email, please see here.
It appears that this amendment will not only provide for the streamlining and ease that comes with access to electronic filing (especially in a COVID-19 world), it may also bring the possibility of having applications from higher volume court locations processed by staff in lower volume court locations to assist those that may be currently experiencing backlog.
Thanks for reading, and happy filing!
On today’s podcast, Rebecca Rauws and Garrett Horrocks discuss the execution of Wills in the midst of COVID-19, and how the emergency measures introduced this year may impact how Wills are executed in the future. The Globe and Mail article mentioned by Garrett and Rebecca during the podcast can be found here.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
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