In today’s podcast, Noah Weisberg and Sydney Osmar discuss Webb v Belway, 2019 ONSC 4602, a recent case from the Ontario Superior Court of Justice, where the court had to consider whether a common law spouse’s conduct towards the end of the deceased’s life, which included misappropriating funds as attorney for property, should be taken into consideration in determining whether she is entitled to support.
If you would like to read more about the case, see Natalia Angelini’s recent blog here.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
A recent news article refers to the struggle of father of accused killer Bryer Schmegelsky to obtain video footage from the Royal Canadian Mounted Police.
The father’s lawyer has referred to the video as the accused’s “last will and testament.” It was apparently recorded very shortly before death and expresses funeral and burial preferences.
Oral wills (also known as nuncupative wills) are recognized in select jurisdictions, including some American states:
- New York law provides that an oral will, heard by at least two witnesses and made by a member of the active military or a mariner while at sea can be valid and will expire one year after discharge from the armed forces or three years after a sailor, if the testator survives the situation of peril;
- In North Carolina, an oral will made while the testator’s death is imminent and in circumstances where the testator does not survive in the presence of two or more witnesses may be valid;
- In Texas, oral wills made in the presence of three or more witnesses on the testator’s deathbed before September 2007 are valid in respect of personal property of limited value.
As most state legislation is silent on the issue of videotaped wills, if the testator’s oral wishes are videotaped, they must generally meet the criteria for a valid oral will to be effective.
However, in Canada, a will must be in writing, signed by the testator, and witnessed by two people. Alternatively, a will that is entirely in the testator’s handwriting and unwitnessed may be valid. Because Ontario is a strict compliance jurisdiction, any inconsistency with the formal requirements, as set out in the Succession Law Reform Act, renders a will invalid.
While a videotaped statement intended to be viewed posthumously may not be a valid will in Ontario and other Canadian provinces, it can nevertheless be used to express the deceased’s final wishes, for example with respect to the disposition of his or her remains (which are typically precatory rather than enforceable, even if appearing within a written document), and may assist a family in finding closure following an unexpected loss.
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Thanks to the New York Times, I found out about where most of Bob Ross’s paintings have been kept all these years. Bob Ross was the iconic host of the television show, The Joy of Painting. The PBS show ran from 1983 to 1994 and these old episodes continue to be watched on television, YouTube, and Netflix today.
In each episode, Bob taught his audience how to paint landscapes from his own imagination and memories. According to this NYT video, Bob would paint three versions of the same painting for each episode. Given the amount of episodes, Bob is estimated to have painted over a thousand paintings for the show alone.
Bob’s paintings are owned by a company known as Bob Ross, Inc. Bob Ross, Inc. was originally owned by Bob, his wife, Jane, and Annette and Walt Kowalski. The Kowalskis are credited with discovering Bob and financing his early career. When Bob died in 1995, predeceased by his wife Jane, the Ross’s shares of the company were left to the Kowalskis.
To date, Bob Ross, Inc. does not sell Bob’s paintings. It is a company that sells painting supplies, books and dvds, and other fun items like t-shirts and coffee mugs.
As a privately held corporation, Bob Ross Inc. can continue to hold onto Bob’s paintings for the foreseeable future. Only time will tell if the shareholders of Bob Ross Inc. might change their minds about Bob’s paintings. For now, the company has donated a collection of Bob’s paintings to the Smithsonian and the rest of us will just have to paint our own paintings by learning from Bob.
Just for fun, and to finish off my theme for the week, here is a video for happy little Bob Ross waffles.
Golden Fall Foliage Autumn Yellow Maple Tree Season
There are three ways in which a joint tenancy may be severed (Hansen Estate v. Hansen):
- Unilaterally acting on one’s own share (e.g. selling or encumbering it).
- A mutual agreement between the co-owners.
- Any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.
In Marley v. Salga, the Court addressed the third manner in which to sever joint title – by course of dealing. In this case, there were competing applications brought by Ms. Marley, the deceased’s widow, on the one hand, seeking sole legal and beneficial ownership of the matrimonial home, and by the deceased’s children from a prior marriage, on the other hand, seeking an order that the estate is entitled to a half interest in the property as a tenant-in-common.
The Court declared that the estate was entitled to a half-interest in the property as a tenant in common. The evidence considered to determine the issue included a deathbed conversation between deceased and Ms. Marley, in which Ms. Marley acknowledged the deceased’s wish to divide the property 50:50 between his children and Ms. Marley. The Court seemed to place great weight on this evidence, finding that the deceased and Ms. Marley “were in agreement as to how the property should be handled on his death.” One commentator criticizes the Court for accepting that Ms. Marley was prepared to compromise her property rights “…on the basis of soothing words spoken to her husband on his deathbed without fully understanding her rights, without the benefit of any advice as to the consequences that would result to her and without any compensation or consideration for the loss of those rights.”
Another consideration for the Court was the language of the deceased’s Will, which allows Ms. Marley to occupy the deceased’s half of the property on certain terms, purports to terminate her rights in certain circumstances, and provides for the sale of the property. The Will’s language assisted in swaying the Court, as the Court treated it as a piece of evidence used to discern if there was a common intention, and it inferred that the provision in the Will was known to Ms. Marley. This rationale has been the subject of debate as (i) a testamentary disposition cannot sever a joint tenancy and should not be relied upon as evidence of a mutual intent, and (ii) there does not seem to have been evidence of both spouses taking steps showing a mutual treatment of their co-ownership as a tenancy in common.
If appealed, we may get some helpful clarification on this important issue.
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We live in a big and beautiful country that is great for summer vacation travel from sea to sea. The vast distance from British Columbia to Nova Scotia is not just geographic, as shown by court decisions involving the review of wills. There is also a great deal of public policy distance between these provinces.
In the recent British Columbia decision on July 17, 2019 of Grewal v Litt, 2019 BCSC 1154 the four daughters of the deceased sought a court-ordered variation of the mirror wills of their parents using the Wills, Estates and Succession Act, S.B.C. 2009, c. 13. In their wills, the parents left 95% of their nine million dollar estate to their two sons and the remainder to their four daughters. The daughters sought and obtained a variation based on the facts and legislation with the court ordering 15% to each of the four daughters and 20% to each of the two sons.
In the Nova Scotia decision in Lawen Estate v Nova Scotia Attorney General, 2019 NSSC 162, the court ruled that the deceased had a great deal of testamentary freedom and that this freedom was constitutionally protected. The Estate of Jack Lawen was subject to a claim by some of his adult and competent children under the Nova Scotia Testator’s Family Maintenance Act for a change in the distribution of assets from what was specified in his will. In this case, the daughters applied, but they were not successful. It is interesting to note that the Judge agreed with the argument that the Canadian Charter of Rights and Freedoms could be used to strike down those provisions of the legislation that allowed the adult competent children to even bring their application to the court. The Charter, it was argued, protects the right to decide where the property would go and to disinherit his children. Presiding Justice John Bodurtha wrote in his decision dated May 24, 2019, “A testamentary decision is a fundamental personal decision that is protected under section 7” of the Charter.
Legislation that infringes and limits a testator’s freedom, however, can be justified in some instances, and to certain degrees, depending on the province and the case facts. If you try to disinherit your dependant spouse then the courts would step in and limit your testamentary freedom. This also applies to not providing for dependants who are minor children, non-competent adult children, and even competent adult children in some provinces. One could ask, however, if it is fair and just that the daughters in British Columbia could achieve an equitable distribution of the family estate, but in Nova Scotia, they would have failed.
Canadian limitations on testamentary freedom are small and balanced in comparison to the forced heirship provisions of many European civil law jurisdictions. In those countries, a testator is forced by law to leave a portion of the estate to family members. The percentage of the estate to be distributed and those who are eligible varies by jurisdiction. It is an interesting public policy approach to make the family unit legally paramount in forced heirship jurisdictions, and not the individual testator.
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With the summer vacation now at the midpoint, many people are travelling as part of their holidays. But, what can one do when a friend or family member dies while you are on vacation? Does your trip have to be cut short? Are there additional charges to be paid for changing dates on plane tickets and for hotel room cancellations? Not any longer. In many cases, a livestream funeral service is now available. Some companies provide this service via the internet. Or, depending upon the funeral home, wireless can be used to stream the memorial service using facetime or skype. There are even websites that provide information and assist with the planning of the do-it-yourself camera work.
There are many advantages for those who cannot attend even if not on vacation. Other reasons to not attend in person might be because of illness, distance, cost or other barriers. Now almost everyone can attend from wherever they are.
Also, the funeral service can be archived and watched again online. This can be of benefit not only to those who could not attend the service in person but also to family members who were there. It can help in dealing with their loss or to simply remember things that were missed in the immediate grief of the service. Technology has developed rapidly. It has become accepted and has recently extended into the areas of wills and estates, providing services such as online obituaries instead of publishing in newspapers; advertising for estate creditors using online services instead of much more expensive newspaper print notices; cataloging and registering the location of wills (in some jurisdictions); assisting lawyers in automated interactive drafting of wills (like the Hull e-State Planner); recognizing the validity of electronic wills (in some jurisdictions); among others. The trend towards even more changes coming in this area is strong and there is hope that expanding technology use will serve to assist friends and family members through difficult times.
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In Baca v. Tiberi, the court awarded substantial costs as against an attorney for property/estate trustee for maladministration of her mother’s property while she was alive, and of her estate following her death.
The litigation was settled prior to a court determination. However, under the settlement, the parties submitted the question of costs to the court.
In Baca, the court found that there was serious misappropriation by the attorney and estate trustee. The attorney added her name to her mother’s bank accounts and took out money for her own expenses. She caused her mother to incur tens of thousands of dollars of debt for the benefit of the attorney, her husband and sister. She moved into her mother’s home with her family and did not pay rent. She transferred title to the home to herself and her mother jointly. After the mother’s death, she transferred the home to herself and her husband. She mortgaged the home to pay her own debts.
At the costs hearing, the court asked the parties whether the attorney’s lawyer might have personal liability for costs. The attorney waived solicitor-client privilege and the lawyer was subjected to examination and made submissions.
The court awarded costs against the attorney and the lawyer on a “full indemnity” basis, after a reduction of $50,000 for excessive time spent, in the amount of $301,941.41, plus HST and disbursements. (The estate had a total value of approximately $1m.) The attorney and the lawyer were jointly and severally liable for costs. As between themselves, the attorney was to be liable for 75% of the costs, and the lawyer was liable for 25%.
In its ruling, the court was critical of the lawyer’s conduct. The court found that the lawyer pursued a goal that was unattainable. Further, the lawyer misrepresented facts to the court. In pleadings, the lawyer (not the client, per the court) denied assertions that were, to her knowledge, true. Further, the pleadings contained assertions that were known to be false. The lawyer allowed a misleading affidavit to be sworn by her client. The lawyer also failed to ensure that certain funds were held in trust in accordance with a court order. At a later hearing, the lawyer advised the court that the funds were held in trust when they were not.
The court found the lawyer liable, partially, on the basis that she knew of her client’s misconduct yet advised or acted on instructions to take untenable legal positions. She also took legal steps that costed her client and the other side hundreds of thousands of dollars, yet the steps did nothing to avoid “the only inevitable conclusion possible”: that her client would have to make the estate whole. There was no evidence that the client was ever advised of the situation.
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In Marsden Estate (Re),  N.B.J. No. 295, upheld on appeal at  N.B.J. No. 304, the deceased was seen by a solicitor and gave instructions for the preparation of a will on September 19, 2016. She died the next day, before the will could be signed.
The estate trustee under the impugned will brought an application to prove the will. She relied on s. 35.1 of New Brunswick’s Wills Act. This section provides:
35.1 Where a court of competent jurisdiction is satisfied that a document or any writing on a document embodies
(a) the testamentary intentions of the deceased, or
(b) the intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will,
the court may, notwithstanding that the document or writing was not executed in compliance with the formal requirements imposed by this Act, order that the document or writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act.
The matter was contentious, as two of the testator’s children were essentially excluded from the will. The testator told the solicitor that she had been estranged from them for some time.
The court relied on affidavit evidence, including the affidavit of the drafting solicitor. The court concluded that the unsigned will reflected the testator’s “deliberate, fixed and final expression as to the disposal of her property upon her death”. Further, the court was satisfied that the testator had testamentary capacity, and was not being unduly influenced.
In earlier blogs, we reported on similar applications under similar “substantial compliance” legislation. An Alberta court considered the legislation but declined to apply it where there was an absence of clear and convincing evidence that the deceased failed to execute the will by inadvertence or mistake. An Australian court went as far as admitting an unsent text message to probate.
In Ontario, the doctrine of strict compliance continues to apply. As stated by Nick Esterbauer in his blog of December 11, 2017, it will be interesting to see if Ontario legislation opens the door to substantial compliance in the future. To date, it has not.
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A recent decision of the Supreme Court of British Columbia examined the tension between a testator’s moral obligation, if any, to provide for a child under a will, and that testator’s freedom to dispose of his or her estate as that testator sees fit.
The facts in Grewal v Litt are relatively simple and were generally not in dispute between the parties. The applicants were the four daughters of the two testators whose wills were under scrutiny. The respondents were the testators’ two sons. The testators had died leaving mirror wills, each benefitting one another. Upon the death of the survivor, the wills left modest bequests of cash to each of the daughters, while the two brothers shared the residue.
The combined values of the estates exceeded $9 million. Pursuant to the terms of the wills, each daughter was to receive a bequest of $150,000, or about 1.5% of the total value of the two estates. The two brothers were the sole residuary beneficiaries and stood to split the remaining 94%.
The daughters brought an application to vary the wills under section 60 of British Columbia’s Wills, Estates and Succession Act (the “WESA”) to provide an equal distribution of the residue between all six children. The application was brought on the basis that the testators had purportedly discriminated against the applicant daughters based on their adherence to traditional cultural values. The respondent brothers agreed that the terms of the wills did not fulfill the testators’ moral obligations to the daughters, but did not agree that the solution was an equal distribution of the residue.
The court grappled with the tension between the need to make proper provision for the daughters versus recognizing the testators’ broad testamentary freedom to dispose of their estate as they see fit. Ultimately, the court found substantially in favour of the daughters and held that each daughter would be entitled to a 15% share in the residue, with the respondent brothers each receiving a 20% share.
In reaching that decision, the court first looked at section 60 of the WESA and noted that the value of the estates was large enough that the court could both consider the parents’ testamentary autonomy in favouring the respondent brothers while nonetheless making adequate provision for the applicant daughters.
The application judge then referred to numerous prior decisions in which the court had ordered variations of wills when unequal testamentary distributions were made by testators who believed themselves to be bound by cultural norms. Finally, the judge noted that the significant contributions by the daughters to the testators during the last few years of their lives, which were not replicated by the brothers, enhanced the testators’ moral obligation to provide for the daughters.
This case’s potential impact in Ontario remains to be seen, although it is important to the note that Ontario lacks a statute with as broad a mandate for varying testamentary documents as the WESA. Part V Ontario’s Succession Law Reform Act is a comparable parallel that allows a court to make adequate provision for a testator’s dependants, but that language is less broad than the language of the WESA. In any event, the Court of Appeal for Ontario held in Spence v BMO Trust Company that absent any requirement by a testator to adequately provide for a dependant, the testator has broad testamentary freedom.
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Often, estate trustees no longer want the job, and want to be removed. This is particularly the case when they are required to deal with difficult beneficiaries. In most cases, where a Certificate of Appointment has been issued or where they have acted as estate trustee in any way, a court order is required. However, as illustrated in Pierce v. Zock, 2019 ONSC 4156, getting an order removing oneself as estate trustee is not always straightforward.
There, the deceased appointed two of his children, Gary and Norma, as estate trustees. The wills, primary and secondary, established a trust for the benefit of another child, Stephen. The relationship between Gary and Norma on the one part, and Stephen on the other broke down. Gary and Norma brought an application to remove themselves as estate trustees.
Under the trusts established by the wills, Stephen was entitled to remain in the deceased’s real property as long as he was capable of maintaining the property and managing his personal care. If these conditions were not met, the property was to be sold and the proceeds divided amongst the deceased’s four children, with Stephen’s share being held in a trust administered by the estate trustees. The estate trustees also sought directions from the court as to whether these conditions were being met, and if not, whether the real property could be sold.
The court noted that a trustee cannot be forced to continue to serve as a trustee if he or she is no longer willing or able to continue. However, in this case, the estate trustees were not able to suggest an alternate to act as estate trustee. No institutional trustee or individual was willing to act. Further , the Public Guardian and Trustee was not willing to act.
During oral argument, Gary indicated a willingness to continue to act on a short term basis, if the court allowed the sale of the real property. The court seized upon this reluctant willingness, and ordered that Norma be removed, but that Gary stay on as estate trustee. The court imposed conditions, which included that Stephen shall have no contact with Gary except through legal counsel.
On the question of the sale of the property, the court refused to allow the sale. The court found that there was insufficient evidence that Stephen was not maintaining the property or was incapable of managing his personal care.
In conclusion, Gary was kept on as estate trustee and was not permitted to resign. The property was not to be sold.
Such a possible outcome should be kept in mind when accepting an appointment as estate trustee. Further, testators should consider naming alternate estate trustees in event that the appointed estate trustees are not able or willing to continue in the role.
Have a great weekend.