“Your Will is a Sacred Trust. It should be made when you are in the prime of life and better able to give it the consideration it deserves.”
From an advertisement in the National Post, Toronto Newspaper, by the Mercantile Trust Company on November 8, 1919.
One hundred years have passed since that advertisement and there have been many changes in the law since then, changes in the use of technology in making wills and changes in society. But, it does not appear that the advertising and marketing of wills has evolved much over the last hundred years. There is little advertising visible today and it does not appear to be effective. Recent surveys have shown that approximately half of all Canadians do not have a will. An Angus Reid Institute report indicates that the majority of Canadians today do not have a will, and only 35% say they have a will that is “up to date”. The main reason cited for not having a will was 25% who said, “Too young to worry about it”. Interestingly, only 18% responded that they thought “It’s too expensive to get a will written” – with this number being only 6% among people with a household income of more than $100K.
In a time when individuals are often spending what appears to be incredible sums of money on material things, and on sports events, concerts, stage productions, and other entertainment, one has to wonder if marketing of the legal service of “getting a will written” has somehow missed the mark when 65% of Canadians say they do not have a will that is up to date.
November is Make a Will Month, which is an opportunity for Ontario Bar Association members to help the public understand the importance of having a will and having it done by a lawyer. Please consider making a will in “Make a Will Month” and instead of putting it off – why not “do it now”. Make a Will Month will see many free legal information sessions presented by volunteers at places like libraries and community centers across Ontario throughout November. For more information, you can contact a lawyer or visit the Ontario Bar Association website.
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The monetary jurisdiction of Ontario’s Small Claims Court is set to increase on January 1, 2020. The jurisdiction of the Court will increase from $25,000 to $35,000.
The current limit of $25,000 was in place since 2010. Prior to that, the limit was $10,000.
In a press release from the Ministry of the Attorney General, the change is said to “make it faster, easier and more affordable for people and businesses to resolve their disputes in front of a judge.”
Claims over $35,000 would need to be brought in the Superior Court of Justice. As noted by the Ministry of the Attorney General, claims in the Superior Court of Justice can take years to resolve, and can involve expensive legal representation. Claims in the Small Claims court, however, can be resolved in less than a year, and litigants are not required to hire lawyers or other legal help.
The Ministry also stated that the change should have the effect of reducing wait times in the Superior Court of Justice, as many claims that would otherwise have been brought in the Superior Court of Justice could now be brought in the Small Claims Court.
Another change is that the minimum amount of a claim that may be appealed to the Divisional Court is increased from $2,500 to $3,500.
As to transition, litigants who started a claim in the Superior Court of Justice for an amount between $25,000 and $35,000 can move to have their claim transferred to the Small Claims Court.
There are costs consequences if a proceeding is brought in the wrong court. Under Rule 57.05 of the Rules of Civil Procedure, if a plaintiff recovers an amount within the jurisdiction of the Small Claims Court, the court may order that the Plaintiff shall not recover any costs. If a Plaintiff recovers default judgment that is within the monetary jurisdiction of the Small Claims Court, costs shall be assessed in accordance with the Small Claims Court’s tariff.
Costs in the Small Claims Court are limited under its rules, and are subject to a limit under the Courts of Justice Act, s. 29, to 15% of the amount of claimed or the property sought to be recovered, subject to the court’s right to award higher costs to penalize a party or the party’s representative for unreasonable behavior.
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Do you smell that? Good!
The sense of smell, or lack of it, can be an indicator of the future onset of dementia.
In a study of 3,000 adults, researchers at the University of Chicago Medical Center found that those who could not identify four out of five common odours were twice as likely to develop dementia within five years.
The study, “Olfactory Dysfunction Predicts Subsequent Dementia in Older US Adults”, was published in September 2017 in the Journal of the American Geriatrics Society. The scents used, in increasing difficulty of recognition, were peppermint, fish, orange, rose and leather. The study found that 78.1% of those studied had a normal sense of smell, and could identify four out of the five scents. 18.7% could identify only three of the scents, and 3.2% could only identify one or two of the scents.
After five years, almost all of those who could only identify one or less scents were diagnosed with dementia.
According to the study, the sense of smell may signal a key mechanism that also underlies human cognition. The olfactory system has stem cells which regenerate, and “a decrease in the brain’s ability to smell may signal a decrease in the brain’s ability to rebuild key components that are declining with age, leading to the pathological changes of many different dementias.”
Because the smell test is so easy to administer, it is believed that the test could lead to an earlier determination of the possible onset of dementia.
Business Insider recently reported that 2.1 billion people access at least one of the Facebook, Messenger, Whatsapp or Instagram apps every day. That’s a little less than a third of the world’s population.
These platforms allow us to share various aspects of our lives. Some of us use them to document everything. But what happens to these accounts when a user passes away? Do their accounts remain on these platforms forever or can they be removed? Let’s take a look at four of the biggest social network platforms to see what their policies say.
Facebook users have the option of having their account permanently deleted or appointing a legacy contact to look after their “memorialized account.” A legacy contact is someone who is chosen to oversee an account if it is memorialized. The legacy contact must be 19 years or older. They can accept friend requests on the deceased’s behalf, pin tribute posts and change the account’s profile picture and cover photo.
Key features of memorialized accounts include the following:
- The word “Remembering” will appear next to the person’s name on their profile
- No one can log into the account
- The account will not appear in public spaces such as friend suggestions
- Content that was shared on Facebook while the deceased was alive will remain visible to the audience it was initially shared with
- Depending of the deceased’s privacy settings, friends of the deceased can share memories on the account’s timeline
Similarly to Facebook, Instagram accounts can also be permanently deleted or memorialized upon request. To remove the account, the user must provide proof that they are an immediate family member of the deceased. Proof may include the deceased’s birth or death certificate or proof of authority that the individual is the lawful representative of the deceased person or their estate. In order to memorialize an account, proof of death such as a link to an obituary or news article is required. A memorialized Instagram account will not appear differently from an account that has not been memorialized.
Instagram’s memorialized accounts have the following key features:
- No one can log into the account
- Posts shared on the account stay on Instagram and will remain visible to the audience they were initially shared with
- Changes will not be able to be made to any of the account’s existing posts or information
Unlike Facebook, a legacy contact cannot be appointed for a memorialized Instagram account.
A colleague, classmate or loved one can request the removal of the deceased’s profile by filling out this form. The form requires several pieces of information such as the applicant’s relationship to the deceased, the link to the deceased’s obituary and the company the deceased most recently worked at.
A verified immediate family member or someone who is authorized to act on behalf of the estate can request the removal of the deceased’s account. A request requires information about the deceased, a copy of ID from the individual making the request and a copy of the deceased’s death certificate.
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Ian M. Hull and Celine Dookie
Disinheritance has long been a subject replete with interest. Is it a doleful mishap, a strange whim rooted in spite, a tragedy, or is it just desserts and a shield by which elderly persons can impose good behaviour on their successors? Charles Dickens was fascinated with the subject. From Great Expectations to Martin Chuzzlewit, many of his tales include fabulously wealthy testators, parasitical and destitute minor relatives, wronged rightful heirs, family bonds eroded by greed, artifice and deception – and often, in the end, a just outcome. Similar to how the poignancy of this theme stirred Dickens’ readers, aggrieved disinherited parties are often so stirred, to put it mildly, that they commence all-out legal warfare – quenching their scorn with the costly and sometimes blackened bread of estate litigation.
From the testator’s point of view, there is no foolproof method of disinheriting a child. It certainly helps if the child is not dependent, is an adult, has no basis for expecting anything, and there is a forceful, probative reason for the disinheritance (i.e. “so-and-so didn’t let me see my grandchildren”). It might be a good idea for a testator to explicitly state that he or she is disinheriting a child, lest the child later make the argument that the omission was a slip-of-the-mind rather than deliberate disinheritance. The testator may also include a clause explaining the rationale, though this can be dangerous – disinheriting someone out of racism (Spence v. B.M.O. Trust Company,  O.N.S.C. 615 at paras. 49-50).
Some drafting solicitors may suggest giving a small, nominal amount to the otherwise disinherited child – to partially appease the child, appear more moderate to a judge, or otherwise “save face”. The problem with this, however, is that as soon as someone is a beneficiary, he or she may be able to invoke beneficiary rights, such as objecting to the passing of accounts.
As for disinherited children, they may have legal recourse, such as section 58(1) of the Succession Law Reform Act, which gives the court discretion to determine if “adequate provision” has been made for a testator’s “dependants”. In Tataryn v. Tataryn Estate,  2 S.C.R. 807, the Supreme Court overturned the explicit disinheritance of a son and wife because it found that the testator failed his “moral obligation” to provide for them. If a dependant support claim leads nowhere, a disinherited child can always challenge the will, for the wellspring of arbitrary disinheritance is often incapacity or undue influence.
It is hard to lose a parent. Hard, too, is the loss of an inheritance. Keeping this in mind, testators who wish to prevent a conflagration of litigation might opt not to light the spark of disinheritance. If they feel the circumstances demand it, however, they should work with their estate planners to fortify their legal positions against the storms which might otherwise gather.
Thank you for reading,
Suzana Popovic-Montag and Devin McMurtry
Communications between a client and their lawyer are protected by solicitor-client privilege. Except in limited circumstances, only the client can waive the privilege.
Upon death, the right to waive privilege passes to the estate trustee named in the will, or appointed by the court if there is no will.
Is the right to waive privilege absolute, applying to all solicitor-client communications? According to a decision of the Supreme Court of Nova Scotia, the answer is No.
In Dumke v. Conrad, 2019 NSSC 310 (CanLII), the deceased died without a will. Her son applied for and was appointed as administrator of the deceased’s estate. He was the sole beneficiary.
Prior to the deceased’s death, the son was attorney for property for the deceased. The deceased regained capacity and brought a proceeding to declare the power of attorney in favour of the son invalid, and to compel the son to pass his accounts. That litigation was resolved.
Following the death of his mother, the son sought to obtain the lawyer’s file relating to the power of attorney litigation. The lawyer then brought an application for directions, with the question being whether the son was entitled to the litigation file.
The court held that the right to waive privilege is not absolute. The files sought must be relevant to an issue being decided or to the ability of the personal representative to administer the estate. Confidentiality “should not be interfered with except to the extent necessary and the right of the respondent to waive privilege must be interpreted restrictively.”
A deceased person could have criminal files, child protection files, divorce files, etc. If a person seeking advice from a lawyer knew that, after their death, their children would have access to those files, the free, confident, candid communication necessary between a lawyer and client would not occur. The basis of solicitor/client privilege would be eroded. As stated above in Descôteaux, the right to counsel would be imperfect if the privilege is eroded or frittered away.
The court could not find any reason why the files being sought would be relevant to the administration of the estate. Rather, it found that the files being sought were for “personal reasons not relevant to the administration of the estate”.
The court ordered that the file in relation to the power of attorney litigation not be disclosed.
Thank you for reading.
Failing to account for monetary and personal digital assets in your will could have devastating consequences for your surviving family members, Toronto trusts and estates lawyer Suzana Popovic-Montag tells Maclean’s magazine.
Recently, the Ontario Court of Appeal ruled that even where a gift is not validly executed, the intention of the parties can still be fulfilled through a bare trust.
A father made a profitable investment that was held by his wife in trust for their three children in equal shares. One brother sold his share of the investment, so that the remaining portion of the investment was to be divided 50/50 between his brother and sister. The sister subsequently disclaimed her share of the investment for tax reasons, with the result that her share reverted back to the mother. It was understood and orally communicated that the mother would hold the investment and gift the income from the investment to the sister, with the principal coming back to the sister as part of the mother’s inheritance. When the mother was eventually declared incapable and the brothers became their mother’s Attorneys for Property, they were suspicious of this arrangement between their mother and their sister, and brought an action against the sister and her husband.
The main issue was whether the past and future proceeds of the investment had been validly gifted by the mother to the sister, and whether the sister’s husband, who had assumed responsibility for using the proceeds, was liable as trustee de son tort.
In the initial ruling, the application judge rejected the sister’s claim to the funds and held that the gift from the mother was invalid. Funds had been transferred by the mother to the sister through signed blank cheques. A valid gift requires delivery from the donor to the recipient (Bruce Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014); Teixeira v. Markgraf Estate, 2017 ONCA 819, 137 O.R. (3d) 641, at paras. 38, 40-44), and the gift was not considered delivered until the cheque had been cashed. In this case, by the time the cheques were cashed by the sister, the mother had been declared incapable and lacked the capacity to gift. The judge ruled that the money belonged to the mother, and that the sister and her husband had to account for it, and the husband was liable as trustee de son tort.
This result was overturned recently in the Court of Appeal. The court found that the applicable legal mechanism here was not a gift, which was invalid, but instead was a valid bare trust. A bare trust is where the trustee has no obligations other than to convey the trust property to the beneficiaries on their demand (Donovan W. M. Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012) at pp. 33-34).
The decision turned on whether there had been sufficient certainty of intention from the mother to create a bare trust, and the court found that there had been. The trust did not have to be formally evidenced in writing because the trust property was funds in a bank account and not land or an interest in land (Statute of Frauds, R. S. O. 1990, c. S.19, ss. 4, 9-11; see also In the Estate of Jean Elliott (2008), 4 E. T. R. (3d) 84 (Ont. S. C.) at para. 42.). There was sufficient evidence in the conduct of the parties to show an intention for the funds to be held for the sister as well as one of her brothers in equal shares, and the certainty of intention for the mother to hold the money as bare trustee was satisfied. As there was a valid trust, the husband was not liable as trustee de son tort because he had not acted inconsistently with the terms of the trust. While the proceeds that had already come from the investment were held on bare trust by the mother, the future distributions from the investment were not, as future property cannot be the subject matter of a trust (para. 58 and 84 of the judgment).
Moral of the story
This is a great indicator of how, when a gift is invalid, the court will use the legal mechanism of a bare trust to give effect to the intention of the parties, so long as their intention is sufficiently certain.
Thanks for reading,
Ian M. Hull and Sean Hess
A few Thanksgiving-related items:
- To go “cold turkey”: to stop an addictive habit suddenly and completely. To be contrasted with a gradual cessation or weaning.
There are differing opinions on the origin of the term. One theory is that the term derives from the cold, clammy feel of the skin during withdrawal, like a turkey that has been refrigerated. Along the same lines, the term may refer to the goosebumps and cold sweats that abstaining addicts may suffer from.
Another theory is that the term derives from a combination of “cold”: in the sense of “straightforward” or “matter-of-fact”, as in “the cold, hard truth”, and “talking turkey”, meaning to speak plainly. Proponents of this theory refer to the fact that the term was used before it was applied to withdrawals from drug addiction.
- John Lennon wrote a song called “Cold Turkey”, which was performed by the Plastic Ono Band. The song was first performed on September 13, 1969 in Toronto, and appeared on an album called “Live Peace in Toronto 1969”. The song’s lyrics are definitely not about a Thanksgiving dinner leftover.
- When cooking turkey, it shouldn’t be cold. Butterball has a “Turkey Calculator” that will tell you how big a turkey to buy, how long to thaw it, and how long to cook it, based on the number of guests.
- “Did you know that Canadians celebrate Thanksgiving at the beginning of October and yet Americans celebrate their Thanksgiving at the end of November? That means we must have invented it, because we celebrate it first. Did you? It’s a fact.” – “It’s a Canadian Fact”, SCTV.
Cold turkey or hot, enjoy your Thanksgiving.
Avoiding Common Errors in an Application for a Certificate of Appointment of Estate Trustee With a Will
Commencing an Application for a Certificate of Appointment of Estate Trustee With a Will is the first step in having a court formally declare a will as valid. This process was formerly known in Ontario as “probate”.
While these Certificates are not mandatory, some banks and financial institutions may require an Estate Trustee to obtain a Certificate in order to deal with estate assets. Aside from this, a Certificate is usually required in instances where:
- the estate is large;
- the assets cannot be easily transferred; and
- real property forms part of the estate.
Avoiding Common Errors
Although the Application for a Certificate of Appointment of Estate Trustee With a Will is fairly short in length and seems straightforward, it is rare for these Applications to be approved upon their first submission. In the majority of cases, they are returned for corrections.
In order to assist applicants in completing their forms, the Ministry of the Attorney General released the following guidelines that highlight some common errors in these Applications:
- An Affidavit of Execution of Will or Codicil (Formed 74.8) signed by one of the witnesses to the will must be filed together with the original will, which will be marked as “Exhibit A” to the affidavit.
- If there is no affidavit of execution and both witnesses cannot be found or have died, an affidavit attesting to the signature of the testator must be filed. Ideally, the affidavit should be made by someone who is familiar with the testator’s signature.
- On Form 74.4 “Application for a Certificate of Appointment of Estate Trustee With a Will (Individual Applicant)”, the question under section 5 regarding an election of the Family Law Act should only be answered if the applicant is the spouse of the deceased.
- If the will states that someone other than the applicant has the right to apply for the Certificate of Appointment of Estate Trustee (or succeeding estate trustee), that person must give up their right by completing Form 74.11 “Renunciation of Right to a Certificate of Appointment of Estate Trustee (or Succeeding Estate Trustee) With a Will.”
- This must be indicated on the Application (Form 74.4) and on Form 74.13 “Certificate of Appointment of Estate Trustee With a Will.”
4. If the applicant is not named as Estate Trustee in the will, they must obtain consent to their appointment from the beneficiaries who make up a majority share of the assets of the estate.
5. If an Estate Trustee who is named in the will or codicil is not the applicant due to death or renunciation, this should be indicated on the Application (Form 74.4) and on Form 74.13.
- If a will and/or codicil refers to a memorandum, the memorandum must be filed with the court.
- If the memorandum cannot be found, an affidavit indicating this must be filed, along with the efforts made to locate it.
- All beneficiaries named in the will must be served with Form 74.7 “Notice of an Application for a Certificate of Appointment of Estate Trustee With a Will.”
- If a beneficiary has not been served, an explanation must be given in Form 74.6 “Affidavit of Service of Notice” as to why.
- Form 74.7 must be marked as “Exhibit A” to Form 74.6 “Affidavit of Service of Notice.”
- The original will should be marked as “Exhibit A” to the affidavit in the Application (Form 74.4).
- If Form 74.8 “Affidavit of Execution of Will or Codicil” is not submitted, an affidavit must be filed with the Application that explains this and sets out the efforts made to find the people who witnessed the testator sign their will.
- On Form 74.13 “Certificate of Appointment of Estate Trustee With a Will”, the address of the court should be typed under the Registrar’s signature line.
- The date should not be filled in on this Form;
- A plain, unmarked copy of the will should be filed; and
- The court will impress a seal upon the Certificate of Appointment and the copy of the will attached.
To read the full article from the Ministry of the Attorney General about how to avoid common errors in applying for a Certificate of Appointment of Estate Trustee, visit this link.
Thanks for reading!
Suzana Popovic-Montag and Celine Dookie