I previously wrote about the upcoming changes to the Succession Law Reform Act, introducing a substantial compliance regime to the law of will drafting in Ontario. As of January 1, 2022, the new Section 21.1 of the SLRA will allow for a broader interpretation of the validity of wills drafted by a testator, if they are otherwise improperly executed, but sufficiently demonstrate the “testamentary intentions of a deceased.”
The result of this change in legislation could be the admission of diary entries or even loose-leaf documents as valid testamentary documents. I could even imagine a future where a Word document saved on a testator’s laptop or cloud server could qualify as a valid will, if no better document could be found.
The February 2020 Dalla Lana decision in Alberta is illustrative. Alberta already has a substantial compliance regime – as do many other provinces – and cases such as this could be relevant to resolving disputes in Ontario, after January 1, 2022.
In Dalla Lana, the deceased wrote changes to his previous will on two sticky notes, only four days before he died. He had previously executed a formal will in 1997, but his sticky notes of March 2018 were deemed to be not only valid changes to his will, but a complete and valid rewriting of his will.
The factors considered by the Judge in his decision included:
1) The testator was old enough (over 17) to make a will;
2) The testator had testamentary capacity;
3) The holograph will was “in writing”;
4) The holograph will featured his signature;
5) His signature indicated his “intention to give effect to the writing in the document as the testator’s will.”
It will be interesting to see if similar cases soon appear in Ontario, as substantial compliance takes effect in the New Year.
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On Tuesday we discussed Grant Thornton LLP v. New Brunswick, 2021 SCC 31, and the new test for when a limitation period is triggered in New Brunswick under the Limitation of Actions Act (“LAA”).
The Requisite Degree of Knowledge
Thornton established that the new standard going forward for triggering the two-year limitation period requires that “the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn. This approach… remains faithful to the common law rule of discoverability set out in Rafuse and accords with s. 5 of the LAA” (Para 42).
Actual or constructive knowledge is furthered described by the LAA. In addition, a plaintiff will have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence (para 44).
Plausible Inference of Liability
The final step that needs to be taken by the plaintiff is to “draw a plausible inference of liability on the part of the defendant from the material facts that are actually or constructively known” (para 45). This requires the degree of knowledge needed to discover a claim is higher than just mere suspicion or speculation. This is in line with the “principles underlying the discoverability rule, which recognize that it is unfair to deprive a plaintiff from bringing a claim before it can reasonably be expected to know the claim exists” (para 46).
As previously mentioned, it is likely that going forward this new standard triggering the limitation period will apply in Ontario as well as other common law provinces going forward.
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Our blog has been following Britney Spears’ conservatorship proceeding closely in the recent months. So far, the #FreeBritney movement has seen significant progress through the appointment of a new lawyer for Britney, and very recently through Jamie Spears’ petition to end the conservatorship. Even though Britney is still under a conservatorship of property and of person, the iconic popstar surprised the world with her engagement to long-time boyfriend, Sam Asghari.
This fantastic news follows Britney’s stunning court testimony back in June that she wanted to be able to get married and have a baby but that she was told that she could not do so because of the conservatorship.
To celebrate Britney’s engagement, I wanted to share Justice Benotto’s words in Calvert (Litigation Guardian of) v. Calvert, 1997 CanLii 12096, as affirmed by the Court of Appeal in 1998 CanLii 3001, with leave to the Supreme Court of Canada dismissed:
“A person’s right of self-determination is an important philosophical and legal principle. A person can be capable of making a basic decision and not capable of making a complex decision. Dr. Molloy, the director of the Geriatric Research Group and Memory Centre and associate professor of geriatrics at McMaster University, said:
Different aspects of daily living and decision-making are now viewed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision- making capabilities and assessments.
The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427.”
While the foregoing passage may not sound particularly romantic, the notion that marriage is the essence of simplicity seems rather befitting to the intimate decision that was made between Britney and Sam.
Britney is not yet a “freed” woman, but as her song goes,
”All I need is time (is all I need)
A moment that is mine
While I’m in between”.
Thanks for sharing your engagement moment with us Britney! Click here for the video of “I’m Not a Girl, Not Yet a Woman”.
The Court of Appeal in Dass v. Kay, 2021 ONCA 565, was recently asked to reconsider the dismissal of a claim that was found to be statute barred pursuant to the Limitations Act, 2002. The appellant in this case is the principal of two corporations, and the respondent was the principal of a mortgage brokerage.
In 2015, the mortgage brokerage was asked by the appellant’s brother to secure financing to purchase a commercial property on Drew Road in Toronto. The Drew Road mortgage application listed the appellant as a guarantor and provided that one of his companies would be the tenant. The Drew Road mortgage application ultimately was denied by Roynat, an affiliate of Scotiabank, although the real issue was that the appellant was never advised of the Drew Road mortgage application, and that the appellant had never agreed to be a guarantor or tenant. The appellant only discovered the Drew Road mortgage application when he was trying to secure financing from Roynat for his own purposes. The Drew Road mortgage application was brought to the applicant’s attention by Roynat on July 24, 2015, and he denied any knowledge or involvement with the application to Roynat then. The appellant’s mortgage application was also ultimately denied by Roynat and he was advised by Roynat that the denial had nothing to do with the appellant’s association with the Drew Road mortgage. On August 21, 2015, the appellant sought advice from his lawyer on the basis that he believed that his mortgage application was rejected because of the improper Drew Road mortgage application, and that the mortgage broker and his brother have harmed his reputation with Roynat. His lawyer’s advice in 2015 was that the appellant had no evidence to prove that the mortgage broker’s actions resulted in the denial of the appellant’s mortgage, and it was the lawyer’s view that an action against the mortgage broker was inadvisable because it was unlikely to succeed. Meanwhile, the appellant was also attempting to borrow from Scotiabank, and he was denied by Scotiabank as well. The appellant was eventually able to secure financing but at much higher interest rates than those offered by Roynat and Scotiabank.
In 2018, when the appellant’s financing was due for renewal, the appellant approached Roynat and Scotiabank again. This time, the appellant was told that he had been “blacklisted” due to Drew Road mortgage application. Thereafter, the appellant issued a statement of claim on April 27, 2018 which sought damages for the reputational and commercial harm suffered by the appellant as a result of the mortgage broker’s submission of the Drew Road mortgage application.
The motions judge found that the appellant knew on July 24, 2015 of the unauthorized application, that he knew on July 27, 2015 of the mortgage broker’s involvement, and that he knew by August 21, 2015 that he suffered financial loss as a result of the unauthorized application because of the appellant’s email to his lawyer. Of note, the Court of Appeal’s analysis of section 5(1)(a)(iv) of the Limitation Act, 2002 is found at paras. 22-28 of the decision.
First, the determination of whether a proceeding is an appropriate means to remedy an injury, loss, or damage depends on the factual and statutory context.
Second, the Court has recognized two non-exclusive factors that can operate to delay matters: (i) when the plaintiff relied on the defendant’s superior knowledge and expertise, particularly where the defendant has taken steps to ameliorate the plaintiff’s loss, and (ii) where there is an alternative dispute resolution process for an adequate remedy that has not yet been completed.
Third, the “appropriate means” factor has nothing to do with the viability of a claim, or any other practical and tactical reasons for waiting.
While the appellant contented that he was not advised of being “blacklisted” until 2018, this does not fall under the two non-exclusive factors set out above. The limitation period does not commence only when one is able to assess whether litigation would be an attractive option (para. 46). Moreover, the appellant’s reliance on the legal advice that he received in 2015 is irrelevant to the limitations analysis (para. 54).
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The twentieth anniversary of 9/11 took place this past weekend. It was a day of reflection, heavy with the sentiment that we must “never forget” what transpired. There were endless stories on the heroism of first responders in Ground Zero but the story that gave me the most pause was this Washington Post article on “The Mystery of 9/11 and Dementia”.
The article by Patrick Hruby starts with Ron Kirchner. Ron was a firefighter in Queens. He was in his thirties on September 11, 2001. By 2009, Ron was retired on disability. He had asthma and lung disease that were both linked to Ground Zero exposure. By 2015, Ron was diagnosed with dementia. He was only 52 years old at the time. Ron’s neurologist thought that his brain scan resembled the brain scan of an 85-year old. Ron now requires full-time care as he has trouble speaking, eating, and bathing.
In one study, 9/11 first responders were found to report instances of cognitive impairment three times the rate of people in their 70’s.
In another study, first responders with PTSD and cognitive impairments were found to have both blood and brain protein abnormalities as those with Alzheimer’s.
The article notes that cognitive ailments are not currently covered under the 9/11 Health and Compensation Act, a federal statute that provides health care and compensation to responders, survivors, and victims. In order to add cognitive ailments to the Act, more research is needed to show that the condition is substantially likely caused by 9/11 exposures.
Hopefully, with the media attention on 9/11 first responders and their needs, funding for all necessary research will be made available to effectively help this tremendous group of individuals.
Thanks for reading.
In the recent decision of BMO Trust Company v. Cosgrove, 2021 ONSC 5681, a holograph Codicil was the subject of dispute. The handwritten document includes the following language:
“End of page 3 of the Codicil for the Last Will and Testament of me, Nola Louise Bogie
Signed, Published and Declared by the said Testatrix, Nola Louise Bogie, at the City of Toronto, in the Municipality of Toronto, in the Province of Ontario,
As and for her Codicil as an attachment amending her Last Will and Testament.
Dated on: [left blank]”
The Court was tasked with considering whether the testator handwriting her name in the attestation clause constituted a signature in accordance with the formalities for executing a Will in sections 6 and 7 of the Succession Law Reform Act (SLRA).
The applicant, BMO Trust Company, agent for the estate trustee, was advocating for the validity of the Codicil, on the grounds that the testator’s signature appears twice in the attestation clause, and this placement of the signature does not render the Codicil invalid in accordance with s. 7(2)(c) of the SLRA.
The respondent, one of the beneficiaries in the underlying Will, contested the validity of the Codicil, arguing that although the testator’s handwriting of her name occurs in the attestation clause, she had no intention to sign, or give effect to, the Codicil.
In the analysis of the case, the Honourable Justice Dietrich noted that Ontario is currently a “strict compliance” jurisdiction, such that the SLRA formalities must be complied with. She reviewed the statutory requirements of section 6 of the SLRA, which states that “A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.” Her Honour also reviewed section 7’s requirements regarding the signature, which must appear “at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.”
Further, Her Honour considered subsection 7(c) of the SLRA, which makes it clear that a will is not rendered invalid “by the circumstance that the signature is placed among the words …of a clause of attestation”, and subsection 7(e), which states that a will is not rendered invalid if there is sufficient space “on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.”
What distinguishes a “signature” from writing out one’s name in long hand was delineated, with Dietrich J. stating that “it must be apparent that what is alleged to be the act of signature was specifically intended by the testator to give legal effect to the document, per s. 7(1) of the SLRA.”
The evidence in this case was also assessed. It notably included that: (i) the holograph Codicil was an unfinished document, with certain blanks, including next to the space where the testator would have likely placed her signature, (ii) though not required, the testator intended to sign the document in the presence of specific witnesses, (iii) the testator understood that the Codicil needed to be signed to be valid, and (iv) after the Codicil was prepared the testator advised the Law Society of Ontario in writing that she had “handwritten a codicil (not yet signed).”
Justice Dietrich concluded upon the evidence proffered that the testator, in writing her name when drafting the holograph Codicil, did not intend to give legal effect to the document.
With legislative changes coming in the new year, we can expect to see similar cases cropping up with increasing frequency.
Thanks for reading and have a good day,
I recently attended a replay of a Continuing Professional Development webinar, hosted by Ms. Lisa Toner and our own Mr. Ian Hull, in which a number of estates lawyers had the opportunity to give six-minute presentations on select, relevant subjects in estates law in 2021.
A presentation on holograph wills by Ms. Clare Burns particularly caught my attention.
Normally, when drafting a will, strict formalities are required, including the signatures of two or more witnesses. The one major exception in Ontario is the “holograph” will – a will written and signed entirely in the testator’s own handwriting.
However, as of January 1, 2022, a new section added to the Succession Law Reform Act, namely Section 21.1, will allow courts to order validation of an improperly executed document if it “sets out the testamentary intentions of a deceased.” The previous passing of similar “substantial compliance” legislation in other provinces has resulted in attempts to probate documents such as diary entries (B.C.), memoranda of an accountant (Manitoba), and sticky notes (Alberta) as testamentary documents, to varying degrees of success.
Ms. Burns suggests that Ontario will likely follow the lead of the British Columbia Court of Appeal in applying this new legislation. In the landmark decision of Re: Hadley Estate, the B.C. Court of Appeal applied the following two-part test: 1) is the document authentic?; and 2) if it is authentic, but not compliant with the formalities for holograph wills, does it represent the deceased’s intentions at the time that document was created? The Court also added that any valid document should have been drafted with the knowledge and consent of the deceased, if it was not in their own handwriting.
Furthermore, certain factors will support the finding of testamentary intention, including: if it was signed by the deceased, if there are witness signatures, if there are references to the revocation of previous wills, if executors are named, and if there are specific bequests. Conversely, there are facts that will weigh against a finding of testamentary intention, including: if written in pencil, if a document is incomplete, if using a pre-printed will form, and if a person has a previous formal will.
Nonetheless, it remains to be seen how this legislation will play out in litigation with the courts in Ontario.
Thank you for reading!
In January 2021, a decision was made by the Ontario Superior Court regarding a motion in the ongoing Cohen v. Cohen Estate matter. This case involves a widow making a claim against the estate of her late husband on several grounds, including a decades-old marriage contract, an application for equalization of net family property, and a claim for dependent support.
As this matter demonstrates, a surviving spouse who believes themselves to have been unfairly left out of the will of their late spouse has several options in terms of litigation against the deceased’s estate. If a marriage contract existed between the spouses previously, providing for one spouse in the event of the death of the other, then the surviving spouse could move to enforce the marriage contract and make an appropriate claim upon the estate.
In the alternative, the surviving spouse can bring an application under the Family Law Act (“FLA”) to effect an equalization of net family property. This would be functionally similar to the process of asset equalization after a divorce or separation, only that the claim would be against the estate of the deceased spouse, rather than against their living person.
Also in the alternative, the surviving spouse can also bring an application under the Succession Law Reform Act (“SLRA”) for dependent support. Essentially, if the surviving spouse were to sufficiently prove to the Court that he or she was financially dependent upon the deceased while they were still living, then the surviving spouse could be entitled to an appropriate amount of cash to support their former lifestyle with their late spouse.
Finally, a surviving spouse can also make equitable claims of unjust enrichment, promissory estoppel, or proprietary estoppel. The essence of all three of these claims is that the deceased benefitted disproportionately from work that their spouse contributed to their relationship, and that the surviving spouse is therefore entitled to financial compensation, as a result.
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One pertinent issue briefly discussed in the recent webinar I attended was that of the effect of the March 2020 Calmusky decision upon estate planning.
In Calmusky v. Calmusky, the Court decided that assets held in a Registered Income Fund (RIF) were presumed to constitute a resulting trust, instead of a direct transfer to the named beneficiary of the RIF. The anticipated impact of this decision on estate planning and administration – and, by proxy, litigation – has caused quite a stir in the legal community.
In the “Wills and Estates Refresher” webinar, the presenters expressed frustration with Calmusky and the complications of its application to their own estate planning practices. After all, designating a beneficiary of a RIF or similar investment account is an excellent tool an estate planner can use to transfer assets outside of a testator’s estate, thus reducing estate administration tax for a given estate. Imposing a resulting trust upon the assets in these accounts to the benefit of the estate quite explicitly defeats the purpose of using such an estate planning mechanism.
The presenters suggested that the estate planning bar was not overly enthusiastic about following Calmusky, for the reasons stated above. In the very recent 2021 decisions of Munro v. Thomas (May) and Mak (Estate) v. Mak (June), the Court was confronted with beneficiary designation fact scenarios quite similar to Calmusky, and decided quite differently. Mak Estate, in particular, directly addressed the legal reasoning in Calmusky and came to the opposite conclusion regarding the question of whether the assets ostensibly transferred to a designated beneficiary ought to be presumed to be held in resulting trust for the benefit of a deceased’s estate. This should be promising to estate planners nervous about the implications of Calmusky over the past year.
However, as Calmusky, Munro, and Mak Estate were all determined at the level of the Ontario Superior Court, until we hear otherwise from the Court of Appeal or Ontario Legislature, the practical impact of Calmusky is in a state of legal limbo.
Thank you for reading!
I recently had the pleasure of attending a Continuing Professional Development webinar offered by the Law Society of Ontario, namely the July 14, 2021 Wills and Estates Refresher.
The main topics discussed in this webinar related to both general issues in the process of estate planning, and particular issues related to the rise of virtual legal practice during the Covid-19 pandemic.
For example, the speakers discussed how many potential clients would approach an estate planning lawyer under the assumption that drafting their will and other testamentary documents would be a simple, uncomplicated process, until their lawyer soon discovered several issues with their assets and life situation that would actually significantly complicate their estate planning.
Six such factors outlined by the speakers were: 1) bequeathing a family cottage, 2) bequeathing a family business, 3) bequeathing to family members living in the United States or another foreign jurisdiction, 4) bequeathing real estate located in the US or another foreign jurisdiction, 5) bequeathing complex financial assets, and 6) bequeathing to children or spouses from a former marriage.
Imagine a situation in which a husband and wife are both married to each other for the second time, both have children from their previous marriages, with a daughter living in England, and a son living in Ireland, while owning a vacation property in Florida. One could understand why, in such a circumstance, drafting a will for the husband or wife would not be so “simple.”
Another cogent issue discussed was the rise of virtual client meetings and execution of wills over the course of the pandemic. Although this was a necessity during Covid, many virtual legal practices will likely continue into the future, as a convenience and cost-saving measure for both lawyers and clients. However, the speakers did note that a lawyer meeting virtually with a client should always be cautious, making sure that there are not other parties in the room with the client potentially unduly influencing their estate planning intentions. One speaker suggested that in the future, she would perform initial client meetings virtually, but would only commission the execution of wills in person. This seems like a reasonable compromise.
It remains to be seen how the profession will move forward in this regard, as many personal and professional restrictions related to the pandemic are gradually lifted.
Thanks for reading!