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”.
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A couple of weeks ago, my colleague Noah Weisberg and I did a podcast about the recent Ontario Superior Court of Justice decision Re Vaudrey, 2019 ONSC 7551. But for those who prefer to read rather than listen, I thought I would provide a brief summary on the blog as well.
The testator in Re Vaudrey died in September 2018. Prior to his death, he had been married to Ethel Vaudrey. The testator and Ethel had been separated for a number of years, but had not divorced. Ethel predeceased the testator, passing away in 2007.
The testator and Ethel had two daughters, Sheila and Kristin. Sheila also predeceased the testator in 2013. She had never married and had no children. After the testator and Ethel separated, Kristin became estranged from the testator. The decision notes that Kristin described the testator as emotionally and verbally abusive.
Kristin was the only surviving family member of the testator.
The testator left a Will executed in 2005. The court was of the view that, based on its format and content, the Will did not appear to have been prepared by a lawyer.
The Will provided that Sheila was to be appointed as estate trustee, and inherit the residue of the testator’s estate, provided that she survived the testator by 30 days. If Sheila did not survive the testator for 30 days, the Will provided that Ethel was to be appointed as estate trustee, and inherit the residue. Again, however, this was conditional on Ethel surviving the testator by 30 days. As mentioned above, both Sheila and Ethel predeceased the testator.
The Will was witnessed by Sheila and another witness.
Lastly, the Will also specifically stated that “under no circumstances is any part of [the testator’s] estate to be transferred to [his] estranged daughter, Kristin P. Vaudrey, or to any of her descendants.”
Unfortunately for the testator, he had not set out in his Will how the residue of his estate was to be distributed in the event that both Sheila and Ethel predeceased him, as they did. The court found that the residue of the estate was to be distributed pursuant to the intestacy rules set out in s. 47 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). On this basis, Kristin was determined to be the sole heir-at-law of the residue. Accordingly, despite the testator’s wish that Kristin not inherit any part of his estate, his failure to include a gift-over clause with respect to the residue resulted in her inheriting the entire residue.
It is also interesting that Sheila was a witness to the Will. Pursuant to s. 12 of the SLRA, where a beneficiary witnesses the execution of a Will, the bequest to that beneficiary will be void. Even if Sheila had survived the testator, the gift of the residue to her would have been void in any event.
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You may also enjoy these other blog posts:
St. Mark Preaching in Alexandria is an impressive, substantial work: it measures 3.47 m by 7.70 m.
Gentille Bellini started the canvas in July 1504. However, he died in February, 1507, before the work was completed. The painting was eventually completed in March, 1507, by Gentille’s brother, Giovanni.
It is believed that Gentille asked Giovanni to complete the painting before Gentille died. Giovanni refused. Gentille then prepared a will in which Giovanni was to be given a collection of drawings from their father and one of the founders of the Renaissance style of painting, Jacopo Bellini, but only on the condition that Giovanni complete the painting.
Conditions precedent, although rare, are not unheard of. Consider a will that provides that the beneficiary can inherit a $300m estate if he can spend $30m in 30 days (Brewster’s Millions), a will that provides for the residue of an estate to pass to “the mother who has since my death given birth in Toronto to the greatest number of children” (Millar Estate), or a will that provides that the beneficiary can inherit a substantial gift, but only if he or she spends the night in a (haunted) house (just about every Scooby-Doo episode).
However, wills with conditions can be fraught with difficulty. There are issues of uncertainty or even impossibility of the condition. They can be contrary to public policy. The condition may also be considered to be “repugnant” to the nature of the gift. An issue arises as to whether the condition is a condition precedent, in which the gift may fail in its entirety, or a condition subsequent, in which the gift may stand but the condition may fail. Great care in drafting such clauses is required.
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 Fun fact: Yes, the Bellini cocktail is named after Giovanni Bellini. Apparently, the pink colour of the peach puree and prosecco drink reminded its inventor, Giuseppe Cipriani of Harry’s Bar, Venice, of the colour of a toga of a saint in one of Giovanni’s paintings.
In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area. As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?
Our regular readers will already be well aware that capacity is task, time, and situation specific.
Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment. Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.
The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow. While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different. Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.
Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy. While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.
Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.
Thank you for reading,
Recently, Stuart Clark blogged about the film Knives Out and its relation to estate law. Another popular movie, Murder Mystery, which aired on Netflix last year, also offered some thoughtful considerations for those interested in estate law. The film, starring Adam Sandler and Jennifer Aniston, was the most popular title on Netflix in 2019. In its first three days on the streaming service, it was viewed by 30,869,863 accounts.
Just as Stuart gave a spoiler alert in his blog, this blog also contains spoilers.
In Murder Mystery, Nick Spitz and his wife, Audrey Spitz, embark on a trip to Europe. On the plane, Audrey meets billionaire Charles Cavendish, who invites them to join him on his family’s yacht for a party to celebrate Malcolm Quince’s (Charles’ elderly billionaire uncle’s) upcoming wedding to Charles’ former fiancée. While on the yacht, Malcolm announces that he will be changing his will to leave everything to his soon-to-be wife. After this surprise announcement, the lights suddenly go out, a scream is heard, and when the lights come back on, the guests are surprised to see that Malcolm has been killed. Nick and Audrey are framed for Malcolm’s death. To prove their innocence, they must find Malcolm’s real killer.
Throughout the movie, French inheritance law is heavily emphasized. As summarized by Nick in the film: “The French law states that a man’s estate must be divided equally amongst his children.” This type of estate plan is referred to as a “forced heirship.” France’s succession law is based on the Napoleonic Code introduced in the 1800s. Under France’s succession law, children are reserved a certain portion of their parents’ estate. If a parent has one child, at least one-half of the estate must be reserved for them. If a parent has two children, at least two-thirds of the estate must be reserved for them and if a parent has three or more children, at least three-quarters of the estate must be reserved for them.
Those who have watched the film may find themselves wondering if the succession laws in Ontario are similar to that of France. Unlike French inheritance law, in Ontario, a testator does not have an obligation to leave a share of their estate to an adult, independent child. Under subsection 58(1) of the Succession Law Reform Act (the “SLRA”), a testator is only under an obligation to provide support for their “dependants”.
According to subsection 57(1) of the SLRA, a “dependant” includes the deceased’s spouse, parent, child, brother or sister “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” Therefore, if a testator was not under a legal obligation to provide for an adult child, that child may not have an entitlement to share in their parent’s estate.
Just something to think about the next time you watch the film.
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Ian Hull and Celine Dookie
Your sister (falsely) trash talks you to your mom. Mom then writes you out of her will.
“Fraudulent calumny!”, you scream.
Fraudulent calumny occurs where a person poisons the mind of a testator against another person who would otherwise be a natural beneficiary of the testator’s bounty by casting dishonest aspersions on his or her character.
The doctrine has been applied or considered in many UK decisions.
Fraudulent calumny is said to be a species of undue influence. However, rather than influence a testator to do something, the influencer influences a testator to NOT do something: leave a bequest to a certain party.
In order to establish fraudulent calumny, the person alleging fraudulent calumny must prove:
- That A made a false representation;
- To B, the testator;
- About C, a third person;
- For the purposes of inducing B to alter his or her testamentary dispositions;
- That A made the representations knowing them to be false, or reckless as to their truth; and
- That B’s will was made only because of the false representations.
See Kunicki& Anor v. Hayward,  4 WLR 32 at paragraph 122.
Like other undue influence, the test is a difficult one to pass.
In a recent UK decision, Rea v. Rea,  WTLR 1231, the court rejected a claim of fraudulent calumny. The court held that the challengers did not establish that their sister poisoned their mother’s mind against them, by saying that the challengers had abandoned her. The court found that the mother felt, of her own volition, that she was abandoned. Thus, whether it was true or not, the mother made her own decision without anyone “poisoning her mind”; therefore without fraudulent calumny or undue influence.
For a more artistic depiction of fraudulent calumny, see Boticelli’s Calumny of Apelles. The painting has been described as follows:
On the right of it sits a man with very large ears, almost like those of Midas, extending his hand to Slander while she is still at some distance from him. Near him, on one side, stand two women—Ignorance and Suspicion. On the other side, Slander is coming up, a woman beautiful beyond measure, but full of malignant passion and excitement, evincing as she does fury and wrath by carrying in her left hand a blazing torch and with the other dragging by the hair a young man who stretches out his hands to heaven and calls the gods to witness his innocence. She is conducted by a pale ugly man who has piercing eye and looks as if he had wasted away in long illness; he represents envy. There are two women in attendance to Slander, one is Fraud and the other Conspiracy. They are followed by a woman dressed in deep mourning, with black clothes all in tatters—she is Repentance. At all events, she is turning back with tears in her eyes and casting a stealthy glance, full of shame, at Truth, who is slowly approaching.
In R. v. Muvunga, defence counsel tried to use the painting as a visual prop, to be referred to as an allegory about false accusations. The court rejected the bid. “While the painting is of great interest to art historians and other scholars, I find that it has no place in a modern Canadian criminal trial.”
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In wills, trusts, and estates litigation, much hinges upon expert evidence. In a will challenge that is based upon alleged testamentary incapacity, both the objector and propounder of the will would be prudent to enlist a capacity assessor. A party suspicious of undue influence may wish to consult a physician, a police officer, or some other party who could be privy to abuse. In a contested passing of accounts, an expert investor can speak to the soundness of a trustee’s investments.
Though in theory expert evidence should clarify the points of contention, in practice it can sometimes render matters murkier and more uncertain. For instance, what happens if two equally distinguished handwriting experts draw opposite conclusions? What if a coroner’s findings contradict the preponderance of other evidence?
Another concern is experts’ impartiality, as evidenced by Wilton v. Koestlmaier, wherein one party unsuccessfully charged an expert witness with advocating for the other side. Courts have long been apprehensive that some experts may (perhaps unwittingly) be kinder with the parties with whom they interact and from whom they collect their bills. In 1873, Sir George Jessel, M.R., wrote:
“There is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them.”
One possible fix for this source of apprehension is to have both parties deal with the same expert. At the very least, litigators should not employ the same expert to too great an extent, which might appear as a “red flag”.
Courts have also looked into the timing for delivery of expert reports. The Rules of Civil Procedure prescribe that expert reports are served no less than 90 days before the pre-trial conference (or 60 days for responding parties’ reports). Oftentimes, however, parties should exchange their reports well before these deadlines, for once parties receive these reports, they have a much better idea of the relative strength of their positions, which may steer them towards settlement. In Ismail v. Ismail, Grace J. spoke to this:
“How can the parties’ lawyers advise their clients concerning settlement without knowing their case and the one they must meet? How can the parties make informed decisions?”
Too many experts can increase costs exponentially (especially if the experts are famous or from faraway places), but too few experts could lead to a scantiness of evidence. As a nice medium, the Australians have come up with the practice of “hot tubbing” experts—which, despite its fun name, does not involve splashing, shouting, or the unusual combination of horn-rimmed spectacles with bathing suits. Rather, “hot tubbing” refers to having a panel of experts questioned together, which can allow for an identification of the points of agreement and disagreement and more lively discussion.
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Suzana Popovic-Montag and Devin McMurtry
On today’s podcast, Noah Weisberg and Rebecca Rauws discuss the recent decision of Re Vaudrey, 2019 ONSC 7551. In that case, the testator tried to disinherit one of his daughters, but failed to make provision in his Will for the disposition of the residue of his estate in the event that the residuary beneficiaries predeceased him (which they did). Without this, the residue of the testator’s estate was distributed on an intestacy—entirely to the daughter that he had wished to disinherit.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
Today’s blog is a continuation of yesterday’s discussion regarding the limitations analysis in Piekiut v. Romoli, 2019 ONSC 1190, 2020 ONCA 26. No limitation period was found to apply where an estate trustee was simply seeking a determination and declaration as to whether certain codicils were valid or not valid.
The testators in this case died in 2008. They had 3 children, Helen, Victor, and Krystyna. A meeting took place in 2008 between all 3 children and a lawyer to discuss the administration of the Estate. During this meeting, Krystyna revealed, for the first time, the existence of codicils and declarations of gift that provide her with an interest in certain properties. Helen refused to acknowledge the validity of these new documents.
In 2015, Helen brings a court application. Her application was later amended, on the consent of parties, in 2018 to reflect that Helen was only seeking a declaration in respect of the validity of the codicils. Thus in 2019, Justice Dietrich’s decision was made in the context of Krystyna’s motion for summary judgment to dismiss Helen’s application on the basis that it was statute barred and Helen’s cross-motion for summary judgment on her application. Justice Dietrich found that, since Helen did not ask the court to determine the ultimate beneficiaries of the properties that were subject to the Codicil or to vest such properties in any particular beneficiary or beneficiaries, her application was not barred by the Limitations Act, 2002.
The Court of Appeal agreed with Justice Dietrich. The panel was also of the view that this case is distinguishable from Leibel v. Leibel, 2014 ONSC 4516 and Birtzu v. McCron, 2017 ONSC 1420 because of the consequential relief that was pleaded in those cases. Since the Court of Appeal decision did not go into the details of the relief sought in Birtzu (unlike its description of Leibel), it is helpful to understand the breadth of the Statement of Claim in Birtzu, which sought the following:
- an Order setting aside the Will;
- an Order setting aside the Deceased’s Powers of Attorney;
- an accounting of the entire Estate, as well as all financial transactions undertaken by the Deceased, or on his behalf, or on behalf of his Estate, from the date that the Deceased’s matrimonial home was sold in 2003 to the date of trial;
- Orders for the production and release of financial and medical information;
- an Order reversing all transactions undertaken by the Defendant, either directly or indirectly, without authority or in breach of her authority, or in breach of her fiduciary duties to the Deceased and to his beneficiaries, including the Plaintiffs;
- an Order tracing the property of the Deceased into the property owned by the Defendant, including her home;
- Orders for injunctive relief, including the issuance of a certificate of pending litigation;
- a Declaration that all property held in the name of the Defendant, or part thereof, is held by her for the benefit of the Plaintiffs;
- damages against the Defendant in the amount of at least $400,000.00, for conversion of property, breach of statutory duty, and/or breach of fiduciary duty;
- pre- and post- judgment interest; and
- costs fixed on a substantial indemnity basis, plus H.S.T.
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The main issue on appeal was whether Justice Dietrich was right in finding that the applicant could still ask the court to determine whether certain codicils were valid (or invalid) seven years after death. Justice Dietrich based her limitations analysis on whether this proceeding would fall under section 16(1)(a) of the Limitations Act, 2002 where there is no limitation period in respect of “a proceeding for a declaration if no consequential relief is sought”.
In her reasons, Justice Dietrich distinguished the case before her from the other limitations cases that have applied the two-year, basic limitation period to will challenges: Leibel v. Leibel, 2014 ONSC 4516, Birtzu v. McCron, 2017 ONSC 1420, and Shannon v. Hrabovsky, 2018 ONSC 6593. The case before her was different from Liebel, Birtzu, and Shannon because nothing had been done by the respondent beneficiary to propound the codicils that she had an interest in. If the proceeding was started differently in 2015, by the very beneficiary who has an interest in the codicils, then the estate trustee would have a limitations defence against the beneficiary. Since the beneficiary had done nothing, it remained opened to the estate trustee to commence an application for declaratory relief. Such declaratory relief is “a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs.’ It is restricted to a pronunciation on the parties’ rights” (see para. 46, 2019 ONSC 1190).
The Court of Appeal agreed that there was no limitation period in this case because the applicant did not seek consequential relief in addition to a determination of the validity or invalidity of the codicils. The Will had not been probated and nothing had been done for seven years to resolve the issue.
“In these circumstances, Helen was entitled to seek declaratory relief, simply to establish the validity, or lack of validity, of the codicils – to define the rights of the parties in order to avoid future disputes.”, Strathy C.J.O., MacPherson J.A., and Jamal J.A.
Thanks for reading and more on these limitation cases to follow later this week!