Listen to The Business of Being an Estate Trustee.
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the business side of being an Estate Trustee and talk about what to do with assets.
Listen to Delay in the Granting of Probate.
This week on Hull on Estates, David and Sarah discuss issues that cause delay in the granting of probate.
Robert Brown claims to be the unacknowledged “love child” of Queen’s Elizabeth’s late sister, Princess Margaret. In his quest to prove his claim, he has sought access to the secret Royal Wills of Princess Margaret and the Queen Mother.
In 2002, shortly before the deaths of Princess Margaret and the Queen Mother, lawyers for the Royal Family, the British Treasury, and the Attorney General met with England’s highest ranking family judge seeking a practice direction to codify the century-long convention that Royal Wills be kept sealed from the public. The Order was passed and the “secret pact” was not made known to the public or Parliament.
Mr. Brown sought to have the Wills unsealed in family court but his case was struck down as vexatious and baseless. Mr. Brown sought leave to appeal and the court of appeal granted Mr. Brown leave and found that he was entitled to a hearing of his claim to have the Wills inspected. Despite calling his claim to be Princess Margaret’s son “irrational and scandalous”, Lord Chief Justice Lord Phillips found that the public interest outweighed the Royal family’s right to privacy and called the pact unconstitutional.
News of the “secret pact” resulted in an outcry in the British media and calls for transparency within the Royal family. Mr. Brown’s lawyer submitted that members of the Royal family who receive national assets should have their Wills inspected by the public to ensure those assets are not mixed with personal property. If Mr. Brown wins, he will overturn the long standing convention that Royal Wills be kept sealed; a convention started in 1911 by Queen Mary to seal the will of her brother, Prince William of Teck and prevent a Royal scandal.
You never know who is going to change the law.
Have a great (long) weekend,
Listen to The Process of Administering an Estate
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the first, pre-probate stages of administering an estate.
Consider the following interpretation issue, which was recently considered by the Ontario Superior Court of Justice:
The deceased left a will kit-type will directing that all “just debts, funeral and testamentary expenses, all succession duties, inheritance and death taxes, and all expenses necessarily incidental thereto, to be paid and satisfied by” my executor as soon as convenient after her death.
The will went on to provide that the following distributions were to be made:
To son A, Property A "with all loans, leins [sic], mortgages attached”.
To son B, Property B, “free and clear of all debt".
The residue was to be divided between A and B. For the purposes of the trial, the only assets of significance were the real estate: Properties A and B.
At the time of her death, the deceased had no debt other than certain mortgages registered on title against Property A.
The issue in dispute was what assets were to be chargeable for paying the deceased’s taxes, including estate administration tax and income taxes, and funeral and testamentary expenses.
A took the position that these expenses were paid out of the residue, and in the absence of any residue, were to be chargeable equally as against Property A and B. (Properties A and B were of equal value.)
B took the position that Property B was conveyed to him "free and clear of all debt", and thus, those expenses were payable out of Property A only.
What did the court do? Tune in tomorrow.
Until then, thank you for reading.
We often see wills where the testator has taken it upon him or herself to make various changes to an executed will by making handwritten changes on its face. What is the effect of these alterations?
A starting point is s. 18 of the Succession Law Reform Act (“SLRA”). This section provides that an alteration is not effective unless it made in accordance with the provisions of the SLRA regarding due execution, or unless the alteration makes a word or words “no longer apparent”.
If the will is a formal will, holograph alterations are not permitted (although a holograph codicil is permitted).
These principles were applied in the case of Luty v. Magill. There, it was found that handwritten alterations to a will that were undated and that did not totally obscure the original bequest were invalid, but that other alterations that were initialled (initials can constitute a signature for the purposes of the SLRA) and dated were considered holograph codicils, and were therefore valid.
With respect to obliteration, if the original words cannot be read, by holding the will up to the light or by using a magnifying glass, (but without the assistance of any other mechanical aids) then the words will be considered to be revoked, regardless of when they were obliterated.
Altered wills will usually require an application for the opinion, advice and direction of the court. Testators should be cautioned as to the requirements for validly altering a will so that the costs of such a court application can be avoided.
Thanks for reading,
In the October 22, 2007 edition of the "Law Times", Bev Cline writes about the importance of family dynamics when considering an estate plan, and when dealing with estate disputes.
The article quotes Hull and Hull’s own Jordan Atin: "A will is usually the last thing that a parent says to his or her children…". As such, the document "creates a definitive, lasting record of the relationship between parent and child and among a child and his or her siblings. That reason alone explains why estate disputes are so hotly contested".
Jordan Atin states that in addition to addressing the mechanics of the estate plan, solicitors also need to address their client’s family dynamics. Lawyers should consider with their clients the emotional effects of the will may that arise after the testator passes away.
In the article, Sender Tator, a solicitor with Schnurr Kirsh Stephens, notes that in the context of litigation, “emotion often gets in the way of legal or practical realities; your client is often looking for a certain result, which legally may not be feasible".
The interplay of family dynamics and human emotion is one factor that makes estate litigation so interesting. (It is also a factor that often makes the practice so frustrating!)
One of the functions of a solicitor in estate litigation is to consider the role of family dynamics, and to see that it is identified and addressed. In addition, the solicitor should strive to ensure that the legal or practical realities are not overlooked, and that passion alone does not drive the litigation.
Thanks for reading, and happy Halloween.
In the recent case of Gubo Estate v. Cotroneo, the Court considered a claim on behalf of an estate for the recovery of funds advanced by the deceased to her boyfriend.
The deceased had sold her home and had given the proceeds of sale, being $65,000, to her boyfriend, and then moved into his home.
The Court found that there was insufficient evidence to establish that the advance was a gift.
As to a remedy, the Court heard evidence that the advance was likely for the purpose of defeating creditors of the deceased. As such, the Court declined to apply the doctrine of resulting trusts, applying a Court of Appeal statement to the effect that "evidence of an illegal scheme will not be received to support a resulting trust."
However, the Court found that it was not necessary to rely on the doctrine of resulting trusts. The Court found that it was able to make a monetary award, and granted judgment in favour of the deceased’s estate.
In advancing a claim on behalf of an estate, the imposition of a trust is not always necessary, and a monetary award will often be the most appropriate remedy.
Have a great day,
A forgotten cousin of litigation is the enforcement of judgments and orders (including cost orders). Here’s a general overview.
To enforce the payment or recovery of money, a party has the following options: a writ of seizure and sale, garnishment, a writ of sequestration, appointing a receiver (Rule 60.02/Forms 60A and 60B).
A party can enforce an order for the recovery or possession of land by a writ of possession (Rule 60.03/Form 60C).
An order for the recovery of possession of personal property, other than money, may be enforced by a writ of delivery (Form 60D).
An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order (Rule 60.05). A motion before a judge is required (Rule 60.11).