Category: Wills

16 Mar

Estate Planning Considerations for Cryptocurrency

Arielle Di Iulio Estate Planning, Wills Tags: , , , , , 0 Comments

Coinbase co-founder and CEO Brian Armstrong recently blogged about the future of cryptocurrency, predicting that it will reach 1 billion users by the year 2030 (up from about 50 million at the start of this decade). With the anticipated increased uptake of cryptocurrency, we can expect that more and more people will hold these types of digital assets on their death. The question then arises: how should cryptocurrencies be dealt with in one’s estate plan?

By way of background, cryptocurrency is virtual currency that uses cryptography to verify financial transactions and control production of currency units in a decentralized, peer-to-peer exchange network. Cryptocurrency runs on Blockchain technology, which allows for blocks of information about transactions to be recorded and stored on a distributed ledger. When a transaction takes place, a block is added to the blockchain and there is a corresponding change in balance in the buyer and seller’s cryptocurrency wallets.

A cryptocurrency wallet or “crypto wallet” contains a person’s public and private keys – the former is used to receive cryptocurrency and the latter is used to spend/send cryptocurrencies to other wallet addresses. The crypto wallet is the only means of accessing one’s digital currency. There are different types of wallets that can be used to store and access digital currency, such as online accounts, mobile apps, external hard drives, or simply paper.

Because cryptocurrency is an intangible asset with little to no paper trail, special estate planning considerations should be made to ensure that the value of these digital assets is not lost on death and can be distributed to the intended beneficiaries.

First, the cryptocurrency owned by a person should be expressly referred to in their will to ensure that their executor is aware that these digital assets exist. A testator should then provide sufficient detail for their executor to be able to locate and access the testator’s crypto wallet. Specifically, the testator should describe what type of crypto wallet they have, where it is stored, and provide any other information that may be needed to access the crypto wallet. Instead of listing this sensitive information in the will itself, which becomes part of the public record through the probate process, a testator should include it in a memorandum to their will.

Thanks for reading!

Arielle Di Iulio

11 Mar

Due Execution of a Will: Bayford v Boese

Ian Hull Estate Planning, Litigation, Wills Tags: , , 0 Comments

For a will in Ontario to be valid, it must meet the statutory requirements for due execution as outlined in section 4(1) of the Succession Law Reform Act (the “SLRA”). In some cases, however, determining whether these requirements have been met is not always clear-cut. Bayford v. Boese, 2019 ONSC 5663 provides such an example.

In this case, the testator, Bruce Boese (“Bruce”), died in June of 2015. Bruce was the sole owner of a farm he inherited from his parents. He never married and did not have any children. For the past two decades prior to Bruce’s death, his friend, Brenda Bayford (“Brenda”), assisted him with the operation of the farm.

Throughout his lifetime, Bruce executed two wills: one in 1992 and another in 2013. Under the 1992 will, Bruce named his parents as his sole beneficiaries. However, since both of Bruce’s parents had pre-deceased him, his estate would pass on an intestacy to his siblings, with Brian and Rhonda each inheriting 50%. Under the 2013 will, the farm property was to be transferred to Brenda, with the residue being equally divided amongst four children of Bruce’s two siblings. Interestingly, the 2013 will had the word “DRAFT” stamped on every page. Also, there were two versions of the 2013 will: “Version 1” and “Version 2”.  Version 1 contained Bruce’s signature but did not contain the signatures of any witnesses. Version 2 contained Bruce’s signatures and the signature of two witnesses, Sophie Gordon (“Sophie”) and Colleen Desarmia (“Colleen”).

After Bruce’s death, Brenda found Version 1 of the will. She brought it to the office of Bruce’s lawyer as she thought that the fully executed version of the will would be there. It was not. Shortly after, Colleen informed Brenda of the existence of Version 2. Upon hearing this, Brenda did a further search and found Version 2.

Brian asserted that the 2013 will did not comply with section 4(1) of the SLRA. His theory was that upon finding Version 1 of the will, Brenda colluded with the two witnesses to procure the 2013 will. In the alternative, Brian asserted that Bruce’s signature was forged on the 2013 will which the two witnesses signed.

Although Brian called an expert to give evidence with respect to Bruce’s signature on the wills, Justice Corthorn did not find the expert’s evidence to be helpful to Brian, nor did she find that it made the two witnesses less credible.

At trial, there were discrepancies between the evidence of the two witnesses with respect to the specific mechanics of Bruce signing the will and the witnessing of his signature. For example, Colleen testified that she believed that both she and Sophie remained standing while Bruce was seated at the kitchen table when he signed the 2013 Will. Sophie’s evidence was that she believed she was the only person standing and that both Bruce and Colleen were seated. Justice Corthorn noted, however, that “these inconsistencies [were] in keeping with the frailty of human memory, including […] the passage of time” and that they did not give her a reason to be concerned with the credibility of either witness.

Furthermore, based on the witnesses’ respective education and work experience, Justice Corthorn drew an inference that each of them had sufficient experience in completing paperwork to know that a witness to a document signs after the document is signed by the principal signatory.

Taking this into consideration, Justice Corthorn concluded that Bruce’s 2013 will was executed in accordance with s. 4(1) of the SLRA and that it was therefore valid.

While Bayford v Boese provides many noteworthy take-aways, perhaps the main one is the importance of ensuring that a will is properly executed, and that it is stored in a safe and easily accessible place that the testator’s lawyer and estate trustee(s) are aware of. Had this happened, the case could have been avoided altogether.

Thanks for reading!

Ian Hull and Celine Dookie

03 Mar

Hull on Estates #590 – Substantial Compliance vs. Strict Compliance

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Wills Tags: , , , 0 Comments

In today’s podcast, Paul Trudelle and Kira Domratchev discuss the British Columbia Supreme Court’s decision in Hubschi Estate (Re), 2019 BCSC 2040, and the factors considered by the Court in holding that the document found on the deceased’s computer was a Will in accordance with the curative provisions of the relevant legislation.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Paul Trudelle.

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03 Mar

Appointing an Estate Trustee During Litigation

Sydney Osmar Estate Litigation, Trustees, Wills Tags: 0 Comments

In its recent decision, Baran v Cranston, the Divisional Court provides a helpful summary of the principles applied by the court when determining if the appointment of an Estate Trustee During Litigation (“ETDL”) is appropriate.

As a starting point, the court outlines the Superior Court of Justice’s statutory authority to appoint an ETDL. Section 28 of the Estates Act provides that an ETDL may be appointed “pending an action touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any probate or grant of administration…” Additionally, Rule 75.06(3)(f) of the Rules of Civil Procedure expressly authorizes the court to appoint an ETDL on an application or motion for directions.

The court then looked to the jurisprudence for further support that an ETDL may be appointed even where the validity of a will is not in issue. In McColl v McColl, an ETDL was appointed, notwithstanding the fact that the validity of the will was not in issue. In McColl, the court ultimately appointed an ETDL “based on the conflict and the trustee’s lack of experience in managing a business.”

In Mayer v Rubin, the court set out that the appointment of an ETDL may be required (even where the validity of the will is not in issue) where the parties’ duties as fiduciaries are inconsistent with their ongoing litigation interests. The appointment of an ETDL will also be necessary where there is a trustee who is in an adversarial position towards a co-trustee or beneficiary, and who therefore, should not be left in charge of trust property.

After having reviewed the relevant statutory provisions and jurisprudence, the Divisional Court went on to note some of the factors that will be considered by the court in determining whether or not it should exercise its discretion to appoint an ETDL:

  • whether a trustee may be a witness in the litigation;
  • potential for conflict of interest;
  • conflict between the interests of the trustees and/or beneficiaries;
  • hostility between the trustees and/or beneficiaries;
  • lack of communication between the parties; and
  • evidence of settlement discussions that exclude some of the parties.

The Divisional Court also approved the lower court’s summary of the legal principles factored into its decision to appoint an ETDL, which included, among others:

  • the court has broad and inherent powers to supervise the management of estates, and can draw upon its inherent jurisdiction (where appropriate) to protect parties so that justice can be done in the proceeding;
  • the court must ensure that there is a level playing field between the parties, and the assets of the estate must be immunized from the tactics employed by litigating parties; and
  • the appointment of an ETDL is not an extraordinary measure and the court should refuse the appointment only in the clearest of cases. The appointment of an ETDL will be “favoured by the court in the majority of cases of conflict between the trustee and beneficiaries unless the administration of the estate is particularly simple or straightforward.”

Thanks for reading!

Sydney Osmar

27 Feb

“Jointly or the Survivor of Them” – What Does That Mean?

Kira Domratchev Estate Litigation, Wills Tags: , , , , 0 Comments

In a recent Ontario Superior Court of Justice decision, the Court considered certain extrinsic circumstances surrounding the making of the Will, as well as the reading of the Will as a whole, in reaching a decision regarding its interpretation.

In Love v Wheeler 2019 ONSC 4427, a spouse of a deceased beneficiary sought a declaration that a beneficiary’s estate was entitled under a testator’s Will to an undivided half-interest in property and that the other beneficiary wrongfully appropriated it.

Some Facts

Frances Irene Wheeler died in 2012. She bequeathed a parcel of land to her two sons, Harold William Wheeler and Martin Douglas Wheeler. Her Will stated that this property was to go to Harold and Martin “jointly or the survivor of them”.

The Court grappled with the question of whether Frances meant to leave the property to Harold and Martin as joint tenants or as tenants in common. Certainly, in a joint tenancy, there would be a significant benefit to the survivor of the two brothers, as the other half interest would pass on a right of survivorship, rather than form a part of the deceased brother’s estate.

This is exactly what happened in this case. Martin died in 2015 and in April, 2017, Harold had the title to the property transferred into his own name, on the argument that it was owned by him and Martin, as joint tenants.

Deborah Love, Martin’s common-law spouse of 16 years, commenced an application before the Court, as against Harold. One of the grounds for Deborah’s position was that the extrinsic evidence surrounding the making of the Will, including a prior Will of February, 2009, supports a finding that Frances intended her sons to inherit the property as tenants in common.

The Court’s Decision

In reaching its decision, the Court emphasized its role in giving effect to the testamentary intention of the testator, as expressed in a Will. Justice Chozik gave consideration to the “armchair” rule, which requires a judge to place him or herself in the position of the testator at the time when the last Will was made, and to consider and weigh the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of her property.

Justice Chozik found that Frances intended to leave the property in question to her sons, as tenants in common. This intention was held to be clear from the Will when it is read as a whole, taking into account some of the extrinsic circumstances surrounding the making of the Will.

This decision certainly emphasizes how important it is that the Will clearly stipulates the terms of each bequest, particularly when it comes to large assets, such as real property.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

The Risks of Joint Tenancy

Joint Tenancy Trap

Severance of Joint Tenancy by Course of Dealing

 

25 Feb

Hull on Estates #589 – “Cottage Planning”?

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Show Notes, Uncategorized, Wills Tags: , , , , , , , , , 0 Comments

In today’s podcast, Stuart Clark and Doreen So discuss the Ontario Court of Appeal’s decision in Donaldson v. Braybrook, 2020 ONCA 66, and what to consider when the ownership of a family cottage was changed to include the children.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Stuart Clark.

Click here for more information on Doreen So.

21 Feb

Perpetual Cases on Perpetuities

Paul Emile Trudelle Estate Planning, Wills Tags: , , , 0 Comments

Goss Estate (Re), 2020 ABQB 121 (CanLII) is the most recent case to discuss the applicability of the Rule Against Perpetuities.

As stated in the case, “Cases involving the Rules Against Perpetuities are rare, however the Rule is alive and well in Alberta…”.

The case notes, dramatically, that the common law doctrine limits “the grasp of the dead hand … on the hand of the living.”

Simply put, the Rule provides that “No interest is good unless it must vest; if at all, not later than 21 years after some life in being at the creation of the interest.”

In Goss Estate, the Rule was applied and the trust created by the testator was found to be invalid. There, the deceased left a will that provided that the residue of the estate was to “be retained in trust for future generations of children and grandchildren”, with only the interest on the capital to be paid out. There was no ultimate residual beneficiary named.

Although Alberta has a “wait and see” rule that provides that if an interest may vest during the period, the trust is not necessarily invalid, such a provision did not apply in Goss as the court found that the interest was incapable of vesting within the perpetuity period.

In conclusion, the court found that the trust was invalid. As there were no named residual beneficiary, the estate passed on an intestacy, to the testator’s two children. With respect to the trust that was intended, “While [the testator] had somewhat noble ideas about how to deal with his estate, perpetual trusts have been unenforceable since 1682”.

For other blogs on the Rule Against Perpetuities, see Stuart Clark’s blog, Rule Against Perpetuities – It’s not so scary, and my blogs, Property Rights and the Rule Against Perpetuities and Hollywood, and the Rule Against Perpetuities.

As always, thank you for reading.

Paul Trudelle

19 Feb

Unconventional Will Provisions

Suzana Popovic-Montag Estate Planning, Wills Tags: , , , , , , , 0 Comments

While the majority of people use their wills to provide for their friends and family after they have passed away, some take their wills as an opportunity to creatively leave their mark in their passing.

In today’s blog, we will look at three cases of bizarre will provisions and their outcomes.

A Rose Everyday

Comedian, Jack Benny was married to his wife, Mary Livingstone, for nearly 50 years. While Jack was known to the public for his television persona of being stingy and terrible at playing the violin, Jack was quite the romantic to Mary. When Jack died in 1974, he left a provision in his will that one red rose was to be delivered to Mary every day for the rest of her life.

In a magazine article written by Mary in memory of Jack, it seems as if Jack’s wishes were carried out. Mary stated that “every day since Jack has gone, the florist has delivered one long-stemmed red rose to my home.”

A Millionaire Dog

Real estate investor and hotel owner, Leona Helmsley, died in 2007. Leona was dubbed the “Queen of Mean”. Leona’s will stated that a $12 million trust was to be established for her Maltese dog named “Trouble”. Leona excluded two of her grandchildren from her will but included $10 million for two of her other grandchildren on the condition that they regularly visit their father’s gravesite.

Trouble’s inheritance was reduced to $2 million by the court, with the remaining balance going to Ms. Helmsley’s charitable foundation. While the loss of income may have been upsetting to Trouble, it may also have come as a relief as there were reports that the dog was forced to go into hiding after a reported threat to kidnap her.

Sam Weir

Sam Weir, who was a retired lawyer, stipulated in his will that $3,500 was to be held in trust for the Law Society of Upper Canada. He directed that each year, the income from the trust was to be paid to the student who graduated from the Bar Admissions Course with the lowest marks. His reasoning behind this was that he knew many lawyers who became successful by “keeping their lack of knowledge in the dark.”

Sam strongly recommended that the recipient of the funds spend it on a “night on the town.” If the Law Society accepted the gift, Sam provided that it would receive an additional $10,000 to be spent on a series of lectures named the “Weir lectures”.

The Law Society declined the gift on the basis that it was not charitable.

Final Thoughts

Although adding an unconventional provision in your will might be tempting, doing so is risky as the provision could be declared invalid for a number of reasons such as uncertainty, impossibility of performance, public policy and more. If you do find yourself wanting to add a unique provision in your will such as the testators above, it is best to discuss it with a lawyer. Even retired lawyer, Sam Weir, could have benefited from such a discussion.

Thanks for reading!

Suzana Popovic-Montag and Celine Dookie

To read about some more unconventional wills, check out these blogs:

Fun With Wills – Charles Vance Millar

Want to be creative with your will? Get a lawyer

11 Feb

Hull on Estates #588 – Rights and Limitation on an Attorney under a Power of Attorney

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Uncategorized, Wills Tags: , , , 0 Comments

In today’s podcast, Natalia Angelini and Sydney Osmar discuss the OBA’s Institute Elder Law program recently chaired by Natalia and Kimberly Whaley. Natalia and Sydney delve into the debated issue of whether or not beneficiary designations are testamentary. Tune in to learn how the crowd voted.

Please note that, as a result of technical difficulties, the introduction of this podcast has been cut off.  Sorry for the inconvenience.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

Click here for more information on Sydney Osmar.

10 Feb

Casey Kasem’s Sad Song of Leaving

James Jacuta Estate & Trust, In the News, Wills Tags: , , , 0 Comments

America’s Top Forty show was hosted for decades by Casey Kasem and was one of the top radio shows in the world. Casey was born Kemal Amin Kasem in Detroit on April 27, 1932 to Lebanese immigrant parents who worked as grocers. He succeeded on radio and also did other work like voice roles in cartoons like “Shaggy” on Scooby-Doo. When he died on June 15, 2014 at age 82 his estate was reported to be valued at over $ 80 million USD.

After his death, three children from his first marriage were involved in what can only be described as a very sad dispute with his second wife that went on for over 5 years. The dispute was recently reported to have been settled in December 2019. This, in my view, is another example of what goes wrong when proper estate planning is not considered by parents/spouses/children. The ensuing consequences are often unfortunate and can be played out, in large part, in the courts. There is too much to the Casey Kasem story for this blog but, the story involves his dementia from Lewy Body Disease, one of the most common progressive dementia’s after Alzheimer’s. It  involves his disappearance and a Los Angeles court declaring him a missing person on May 12, 2014.   It involves his not being buried for six months after he died and then being buried in Oslo Norway for some reason on December 16, 2014. For more on this story I suggest the article by Amy Wallace entitled “The Long, Strange Purgatory of Casey Kasem”.

Thanks for reading!

James Jacuta

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