A recent master motions in the Estate of Robert William Drury Sr., 2019 ONSC 6071, considered the issue of an extension of time to serve a statement of claim.
Robert Sr. owned a property where the defendant Shirley lived with her spouse Hugh Drury. When Hugh Drury died, Robert Sr. sought vacant possession of his home. Robert Sr. died on September 8, 2016. Days later there was a fire on the property on September 24th and Shirley was criminally charged with arson.
Almost two years later, the estate trustee for Robert Sr.’s Estate issued a statement of claim for malicious and intentional arson damage, or gross negligence causing loss of enjoyment of life, or damages for loss of property. That claim was issued on September 19, 2018 while Shirley’s criminal proceedings were underway. Pursuant to Rule 14.08(1), Robert Jr. had 6 months to serve the civil claim on Shirley which expired on March 19, 2019. Shirley was not served until June 14, 2019 when Robert Jr. brought a motion for an extension of time.
In applying the test that was set out by the Court of Appeal in Chiarelli v Wiens, 2000 CanLii 3904, the extension of time was ultimately allowed by Master Sugunasiri.
The delay was only three months and the prejudice to Shirley was minor. Robert Jr. explained that he acted on the advice of counsel when the decision was made to serve Shirley after the conclusion of the criminal proceeding. This decision was not personal or contemptuous. As for Shirley, while memories fade over time, the criminal proceeding was found to be an ameliorating factor that preserved her evidence for the civil proceeding.
In reaching this decision, Master Sugunasiri also considered an instance where an extension of time was denied because the delay was caused by the Plaintiff’s decision not to serve the claim until he had enough money to fund the proceeding. In that case, the Court found that the Plaintiff ought to bear the consequences of the risk that he took under the Rules.
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Some basic questions to get you thinking about starting a will with a surviving spouse scenario:
- Everything to spouse Absolute (no strings attached)?
- Some or all assets held in a Spousal Trust (some conditions will apply) ?
- An amount immediately to children with the balance to the spouse Absolute?
For lawyers – the Hull e-State Planner is a tool for making wills and has been called “the future of will planning”. To book your free demo today email to email@example.com
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If this blog is interesting, please consider these other related resources:
This week on Hull on Estates, Noah Weisberg and Doreen So discuss a recent decision on oppression remedies in Corber v. Henry and how corporate issues may arise in estate matters.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
The book “The Beautiful Ones” was released last week in Canada. Part memoir (until his teenage years) and part biography, the book provides some insights into the life of one of the most influential musicians of our time. “Prince” Rogers Nelson, a multi-talented singer-songwriter died on April 21, 2016 at the age of 57 from an accidental fentanyl overdose at his estate outside Minneapolis. He died without a will.
The Minnesota Star Tribune reported about two weeks later, on May 8, 2016 that: “Suddenly, wills and estates are a topic everyone wants to learn about.” And “They are talking about it at the family barbecue, the Rotary Club, and the Anoka Area Chamber of Commerce”.
According to several surveys, approximately 65% of Canadians do not have an “up to date” will. “Make a Will Month” encourages Canadians to make or update their wills. Doing so can save a lot of expense, delay, and conflict in the future. A proper will and estate plan means reducing or eliminating problems that arise when a person dies intestate (without a valid will). It has been reported that three years after his death Prince’s estate is still not distributed. Lawyers for his sister and half-siblings are squabbling. Claims by some alleged descendants have been dismissed. According to some estimates the estate is worth more than $300 million USD.
All kinds of people, including famous musicians, die without having made a valid will. Some who did not get around to making a will include: Jimi Hendrix, Bob Marley, Kurt Cobain, Salvatore “Sonny” Bono, Duke Ellington, Barry White, George Gershwin, and Amy Winehouse.
Why wait? It is Make a Will Month! Please consider making a will. Thanks!
“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.
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Suzana Popovic-Montag and Devin McMurtry