Cars have never been a huge focus for me (more of a necessity than a passion) but, at my husband’s insistence, we do go to the Canadian Auto Show in Toronto every four or five years to look at the new models and think through possible future purchases.
When we went several years ago, every manufacturer seemed to have a display centred on electric cars. This was the way of the future, clearly. You couldn’t miss it.
But something seems to have happened. When we went this year, while there were lots of electric cars on display, there was little of the hype from just a few years earlier. And the word we saw more of was something I don’t even remember seeing last time: hydrogen.
Are we almost post-electric?
Did I just wake up and miss the news about electric cars NOT being the next big automotive technology? It seems I might have. I stumbled across this Jim Kenzie review in the Toronto Star comparing a Hyundai electric car versus one of its hydrogen fuel cell cars. Check out what he had to say about the future.
Hyundai … knows as any thinking person does that gasoline will continue to be by far the dominant player for at least another half-century …
Hyundai also understands that battery-powered vehicles will never be more than bit players — again, where are we supposed to get enough electricity to replace all the gasoline we burn?
Simply, we never will.
Battery-powered electrics will mainly be a bridge to the obvious medium-to-long-term solution, which of course is hydrogen-fuel-cell electrics.
You can read the full review here.
Hydrogen may lead
It seems that many in the automotive industry agree with Jim Kenzie. Despite Elon Musk’s view that hydrogen fuel cells are “mind-bogglingly stupid”, a 2017 survey of 1,000 global auto executives concluded hydrogen fuel cell technology will ultimately outperform battery-powered electric vehicles.
A key reason? You can fill up a hydrogen-powered car in five minutes (the same as today’s gas), but electric cars can take hours.
In today’s society, new technologies are constantly being developed and trends are forever changing. It’s important to keep this in mind when contemplating estate plans and future financial investments – what appears to be the “next big thing” one year may be forgotten the next.
My conclusions from all of this are simple. My electric car guilt is now gone. I’m not going to line up for a Tesla or stress about the fact that I haven’t gone electric. Instead, I’ll look for other ways to reduce my automotive carbon footprint – and keep my eye on how hydrogen fuel cells are evolving.
Thanks for reading!
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.
Thanks for reading!
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.
Thanks for reading.
In this week’s episode of Hull on Estates, Paul Trudelle and Garrett Horrocks discuss the use of hearsay evidence in a motion for summary judgment, and the Ontario Court of Appeal decision of Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447 (CanLII).
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
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.
Thanks for reading.
Smartphones have disrupted a lot of old school technology – the humble alarm clock being one of them. Few people under 30 own an alarm clock, and I’m sure many don’t even know what an alarm clock is.
Even for the over-30 set, a lot of us rely on our phone to wake up. But is it the best way? The alarm clock was a specialist device – it told time and woke us up. That’s it. Our phones are generalist devices. While they can do a lot of things, they may not do each task as well as a specific device made for a specific purpose. That’s why many people still buy cameras, and calculators, and stopwatches, even though their phones can do all of those tasks.
Here’s the thing about alarm clocks: they’ve come a long way. And many of these innovations could be a big improvement over using the alarm function on your phone. Take a look at these two innovative approaches to alarm clocks that could change your mind about your phone alarm:
Ruggie – no more snooze
The MIT Technology Review quotes a study that found that Americans spend 3.5 months of their lives hitting the snooze button. Since studies have shown that our snooze button habit actually hurts us more than helps us, snoozing is truly wasted time that negatively impacts our lives.
Enter the Ruggie, an alarm rug that only turns off when you get up and stand on it for several seconds. It forces you out of bed and keeps you up. Kiss the snooze button goodbye!
See the light
The sound of an alarm can be jarring, even for good-natured morning people. So here’s a twist: an alarm – the Philips Wake-up Light – that uses a combination of light and sound to wake you up. The light begins with soft dawn red before moving to orange and then yellow. And it starts 30 minutes before your actual wake up time, so you can ease gradually into wakefulness.
Other innovative approaches
This recent article on the Digital Trends site has several other “alternative” alarm clocks. Check them out – there may be one that wakes you up in a whole new way!
Enjoy your day!
A recent decision out of the Ontario Superior Court of Justice serves an important reminder of the difficulties that can arise in interpreting and implementing a will when the life circumstances of a testator change after preparing the will.
In Stuart v Stuart, 2019 ONSC 4328, the Court dealt with the interpretation of a will prepared by a testator in 1999. At the time of preparing the will, the testator was married and lived in a property he and his wife owned as tenants-in-common. Although they remained married and did not indicate any intention to separate, the testator eventually required placement in a long-term care facility.
The testator’s wife subsequently decided to sell the property she and her husband had lived in together and purchased a life lease housing interest (see here a guide from Ontario’s Ministry of Municipal Affairs and Housing for more on these arrangements). The wife purchased the life lease as tenants-in-common with the testator, but he never resided there as he remained in long-term care.
The testator eventually died and sometime after his death, the wife sold the life lease interest and deposited half the proceeds of sale into the testator’s estate. After the wife’s death, Directions were sought by the Estate Trustee with respect to the interpretation of the following provision of the will:
3(h) To allow my wife, during her lifetime, the use and enjoyment of whatever interest I may own in any residence we may occupy at the time of my death. My Trustee may, at any time, with the consent of my wife, sell such interest with the proceeds of such sale assist in the purchase of another residence for the use and enjoyment of my wife as aforesaid and so on from time to time, always retaining the proportionate share in such residence for my estate. If my wife so prefers, my Trustee may sell such interest in the residence and hold the net proceeds of sale in trust for my wife as hereinafter set out. If, during any period, the whole or any part of the proceeds of any such sale be not so used, they shall be invested by my Trustee and my wife shall, during such period, be entitled to the net income therefrom. My Trustee in determining the proceeds of sale of any such interest in the residence with a view to providing another interest in the residence for my wife as aforesaid, shall not deduct the amount of any debts secured thereon.
Because the husband had still been alive at the time that the home he shared with his wife was sold, the questions was whether paragraph 3(h) of the will remained operative as the husband never resided in the subsequent property that he and his wife owned at his time of death.
The Court applied the armchair rule to “assume the same knowledge [the testator] had to the nature and extent of his assets, the makeup of his family, and his relationship to its members.” The Court found that the testator and his wife remained married and were separated only due to the testator’s health. Had he not been in long-term care, he would have resided with the wife. The Court then found that the testator’s primary intention, from his will, was that his wife was properly cared for after his death such that he “clearly wanted his wife to be able to remain living in whatever home she and he, but for his medical condition, would have been living in at the time of his death.” The Court therefore found that the terms of the will allowed the wife to reside in the subsequently purchased home, despite the testator never having lived there.
Thanks for reading!
In March of last year, I blogged on the decision in Hunt v Worrod which dealt with predatory marriages and an individual’s capacity to marry. There have been several developments in that case since then, most recently in a Court of Appeal decision released in June, concerning the issue of costs.
The facts of the case are set out in greater detail in my earlier blog, but a quick refresher may nonetheless be helpful. The application was commenced by the applicant, by his two litigation guardians, largely for the purposes of challenging the validity of his marriage to the respondent and its effect on her property rights as a spouse of the applicant. The respondent had been granted a legal aid certificate by Legal Aid Ontario (“LAO”), which funded her legal fees through trial. Importantly, LAO was not retained as counsel by the respondent. Rather, the respondent retained private counsel whose fees were funded by LAO.
The applicant was ultimately successful at trial and sought an order for costs against the respondent personally, the respondent’s counsel personally, and LAO. In his decision on costs, Justice Koke ordered the respondent was to pay the applicant’s costs on a full indemnity basis. However, he equally noted that, as a result of her limited means and tenuous financial position, it was unlikely that the respondent would be able to pay any amount of that costs award.
The trial judge then turned his mind to the request for costs payable by LAO. In reviewing the circumstances of LAO’s involvement in the case, the trial judge held that it had failed to carry out its mandate by continuing to fund the respondent’s fees notwithstanding the lack of merit. The trial judge ordered LAO to pay one-half of the amount of the costs award made against the respondent.
LAO appealed the costs award and was successful. In its reasons, the Court of Appeal plainly stated that the decision to award costs against LAO could not stand, as it had been made on a misapprehension of LAO’s role in the matter. While the trial judge had held that LAO purportedly failed to monitor the litigation that it had continued to fund, resulting in an abuse of process, the Court of Appeal took a markedly different view.
Notably, the Court of Appeal identified that LAO’s role was strictly limited to providing funding for the respondent to retain separate counsel in accordance with its statutory mandate. LAO itself did not act for the respondent, nor was it a party to the initial application.
Had LAO been a party to the litigation, the Court of Appeal held that they would properly have been exposed to a potential costs award, subject to the discretion of the trial judge. However, in the absence of evidence of any bad faith on the part of LAO in continuing to fund the litigation, the Court of Appeal held that a costs award against LAO was not appropriate in the circumstances.
Thanks for reading.
Summer is fleeting – and we often put pressure on ourselves to make the most of this 3-month sliver of warmer weather.
But here’s the issue. Day-to-day life doesn’t stop. You still have to work most weeks, kids need tending, dogs need walking, and meals need making. And expenses don’t go away – there’s a limit on what you can spend.
So, instead of focussing on big, time-consuming, or costly things that can make a summer special (trips, hot-air ballooning, cottage rentals), how about some small things that can rock your summer.
Here are five small activities that you can easily work into your summer plans.
- Jump in a fresh water lake: You actually don’t have to jump, but there is no summer experience that can match the feel of a Canadian freshwater lake. Even if you’re a non-swimmer, put on a life vest and wade in. Just once. I guarantee it will be memorable.
- Take in one outdoor concert or event: Shakespeare in the Park, a jazz concert, a baseball game – there are many ways to enjoy some sport or culture in the warmer weather. It’s a chance to sit, relax and let someone else do the entertaining.
- Eat ice cream on a hot night: Your diet is no excuse – there are sugar-free and vegan ice cream options everywhere these days. On a hot day, wait until dark then head out for ice cream. The combination of heat, cold and dark can make for some memorable moments.
- Plant a vegetable, somewhere: It can be in a garden or a pot, or secretly hidden in a park, but plant something that you can harvest later in the summer. You’ll get great satisfaction in eating a home-grown carrot, bean, tomato, or zucchini.
- Have a BBQ or patio dinner: If you have a BBQ, use it – the smell alone will bring back memories of summers past. If you don’t BBQ, make a point of having a patio dinner, at a restaurant or at home. And as you’re sitting there, remember: you can’t do this in January.
Here’s to better weather!
Ian M. Hull
In researching common errors in will drafting, we recently stumbled (as one often does through research) on the following question:
In the case of mutual wills, what happens in the event of remarriage?
Mutual wills operate as a contract. Simply put, the terms of the contract are that absent any revocation during the joint lives of the parties, the survivor will not revoke thereafter. The conundrum then becomes: If a will by its very nature is revocable, and wills are automatically revoked by marriage, what then happens to the agreement in the event of a second or third marriage?
The question at hand is best described with an example:
Jane has two children from a prior marriage, as does John. John and Jane get married and draft wills. The wills of Jane and John are identical except for some names and dates and include an agreement that says in part, that if John dies, all assets will be transferred to Jane absolutely, and when Jane dies all assets shall be divided equally among their four children. When John dies, his assets vest in Jane, and her will is now locked such that changing it would frustrate the terms of her agreement with her now deceased husband. But what if then Jane meets and marries Oscar? If all prior wills are null. . . Now what?
The courts have wrestled with the concept of mutual wills since the death of Lord Horatio Walpole in 1797. In his will of 1756, a nephew of the English author and statesman, George Earl of Walpole, demonstrated intent to enter in to a “compact” with his late uncle for the disposition of his and his uncle’s estates to the benefit of their respective families. The question that arose then, as it still does today, is upon what terms the two parties were transacting, and how should they be bound? Or, to quote a commentary from the turn, “How far in law and equity was each at liberty to repent, and to recall his share of the testamentary exchanges between them?”
204 years later, the question continued to be addressed in a seminal decision of the Ontario Superior Court of Justice. In 2001’s Edell v. Sitzer, Cullity J, was tasked with unpacking a bitter family dispute where an alleged agreement not to depart from equal division of assets was at stake. The question before the court then (in part) was, do the facts give rise to a constructive trust? Justice Cullity set out the test for mutual wills thusly:
- The mutual wills were made pursuant to a definitive agreement or contact not only to make such wills, but that the survivor shall not revoke.
- Such an agreement is found with certainty and preciseness.
- The survivor has taken advantage of the provisions in the mutual will.
If the test is satisfied, the court can impose a constructive trust. Rooted in the law of equity, an implied or constructive trust aims to remedy any unjust enrichment by one party of a contract (a surviving spouse, for example) over another.
But what consistently seems to trouble the conscience of the court, is the idea of “contracting-away” one’s testamentary freedom. There is no restriction for a will made in defiance of such an agreement, but in equity, the court is almost bound to treat mutual wills as a single testamentary instrument. This was the problem in the 2016 ONSC case of Rammage v. Estate of Roussel: Alf and Ruth Roussel had made mutual wills 13 years prior to Alf’s death in February of 2009, agreeing in part to divide their estate equally among their four children (both Ruth and Alf went into the marriage with 2 children each). One year after Alf’s death, Ruth made a new will, disinherited Alf’s children, and left everything to her own two kids. Upon the death of Ruth, the litigation began.
The court in Rammage determined that the wills of the deceased testators amounted to mutual wills, imposed a constructive trust, and divided the assets according to the terms of the first wills of Ruth and Alf. If the court is satisfied that the wills are mutual, any property disposed of in a subsequent testamentary document is subject to a constructive trust in favour of the named legatees, and the subsequent will fails.
Returning to the question of remarriage, one could expect the need for administration and ultimately judicial intervention, should all the beneficiaries not consent to the changes in subsequent wills. Like many decisions that seem like “a good one at the time,” mutual wills should be considered very carefully and with the advice of independent counsel. A decision to enter into a contract that prohibits one from ever changing their last will and testament must be considered from all sides. To quote the late Horatio Walpole, the 4th Earl of Orford: “The wisest prophets make sure of the event first.”
Thanks for reading!
David M. Smith & Daniel Enright (Summer Law Student)