Tag: Archived BLOG POSTS – Hull on Estates

18 Dec

You Make The Call – continued

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Yesterday, I set out a fact situation giving rise to a certain interpretation issue.

The fact situation is based on the decision of Moore J. in Rudling Estate v. Rudling, 2007 CanLII 51794 (Ont. S.C.).

There, the court held that the word "debt" in relation to Property B could not include within its meaning all of the taxes, expenses and other charges that the estate trustee is directed by the will to satisfy in addition to "debts" of the estate. The court found that all reasonable charges against the estate arising from the death of the deceased were, by the terms of the will, intended to be paid from the estate before the specific bequests of the two properties are made. That is, both A and B are to share the burden of the testamentary expenses.

The court found that the will could be fairly construed upon the language contained within its four corners, and without the need to resort to extrinsic evidence in order to interpret the meaning.

However, in light of the Orders Giving Directions made in the case, and the issues is raised in the pleadings, and “because I am aware of the recent tendency of Canadian courts to apply the ‘armchair rule’”, the court also addressed the interpretation of the will in light of the surrounding circumstances. The court examined the surrounding circumstances, hearing from ten witnesses over the course of seven days. After considering this evidence, the court concluded that the evidence did not support a conclusion that the testamentary expenses be borne by A alone.

Did you make the right call?

Paul Trudelle

17 Dec

You Make The Call

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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.

Paul Trudelle

14 Dec

Value of Assets – How Clear is the Picture?

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A few days ago I briefly commented in my blog about knowing the value of one’s assets when completing an estate plan. As clear a picture as possible, it seems to me, is helpful to the testator. 

One benefit is that being able to prove after death that the testator knew the nature and extent of his/her assets will help in claiming the Will is valid.

A hypothetical scenario may be helpful to imply some of the seemingly endless issues which can arise: a testator wants basic equality among three children, with some caveats. The eldest child is to receive the cottage he and his children love so much. The middle child loves a painting whose value is understood to be very high, and which was bought for next to nothing before the artist rose to prominence but has never actually been appraised. The rest of the estate, mostly made up of the testator’s condominium, goes to a third child. 

The testator is ‘pretty sure’ that makes for a fairly even division, and also that his/her estranged sibling’s claim that the cottage belonged to their parents who wanted it to go to the survivor of the two of them ‘won’t amount to much’. The testator has not considered tax and other consequences of transferring the various assets after death.

This scenario may well seem perfectly simple to the testator. However, to a solicitor it might not seem quite so simple. The tax consequences which arise regarding each asset could be very different. The values of real estate may have changed dramatically since the testator purchased it. Values of art, in my very limited experience, are quite difficult to assess with any certainty until the art is sold. The children’s likes and circumstances may be different than the testator believes, or could change over time.

These issues are only the beginning… 

Thanks for reading.

Sean Graham

13 Dec

Memorial and Burial Arrangements

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Perhaps the most emotionally trying duty of an Estate Trustee is making burial and memorial arrangements.

This can be doubly so where family members have different views and priorities than the Estate Trustee. When the source of those views is religious differences, compromise becomes well-nigh impossible. Families can break apart, never to reconcile.

Into this fray, lawyers inevitably become part of a terribly combustible mix. Eventually, a dispute can reach the Courts.  When it does, family members who believe they know, regardless of the Estate Trustee’s plans exactly what a deceased wanted may be shocked to find that their recollections and most sacredly-held beliefs give way to the Estate Trustee’s power to decide.

This, I believe, must be so. A Judge is in no better position to decide how to honour a deceased than warring family members, and perhaps a worse position since he or she would likely not have even known the person.

One more reason to be careful when choosing an Estate Trustee, and clear when telling him or her your wishes.

Thanks for reading.

Sean Graham

12 Dec

Current Events Considered

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It strikes me as ironic that the prosecution of Conrad Black has caused barely a ripple in the US media (at least from what I can tell), but will probably prove to be the most talked-about and reported on case in the Canadian media this year, if not in many years.

Of course that has as much or more to do with Conrad Black’s personality and impact on Canada and the Canadian media than the legalities of his case. I won’t bore anyone with my opinion, but opinions are not in short supply. Here’s Diane Francis’s. (From the National Post).

It seems to me there are some parallels to civil, and certainly estate litigation, although the stakes are generally much lower. In many cases the expenses of the legal fees reduce the amount of funds available at the end of the day, leaving many parties at the end of the day, even if successful, with a sour taste in their mouths about the justice system.

Thanks for reading,

Sean Graham

11 Dec

Unpredictability – Planner’s Bugbear

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Having just returned from a week in Miami, I am still shaking my head at the nasty situation Florida is facing with real estate prices.

A few years ago, the Miami market in condominiums was steaming along, demand was stratospheric and buildings were going up left right and centre, with no apparent end in sight.

Then came the hurricanes that hit the gulf coast and now the sub-prime mortgage problems. What a change: now there is no apparent end in sight to difficulties finding buyers.

Real estate agents I happened to speak to were alomst desperate in asking why, with the Canadian dollar so strong, more Canadians are not buying winter properties in Florida. Strong Dollar or not, Canadians not buying in Florida seem to be in good company, because very few other people seem to be buying either.

It struck me that these sorts of dramatic fluctuations are going on all the time with respect to assets of all shapes and sizes. Sometimes owners of real estate do not even know about reduction or increase in the value of their property until they decide to sell it, at which time they recieve a delightful or nasty surprise.

Of course, nobody has a crystal ball about these things, least of all estate planning lawyers. However, to the extent misapprehension of the values of assets may be affecting the planning process, you cannot go wrong advising clients to obtain appraisals of key assets before they sign their wills, not to mention suggesting they obtain periodic estimates afterwards, then turning to further advice as to planning changes which may be prudent if values have changed dramatically.

Thanks for reading,

Sean Graham

11 Dec

Probate Issues and Requirements – Hull on Estates #89

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Listen to Probate Issues and Requirements

In this week’s episode of Hull on Estates, David Smith and Allan Socken discuss probate issues, including the need for probate, when its avoidance is possible, and new developments relating to probate matters.

 

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10 Dec

John (Iain) Richard Connolly

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Last week saw the sudden passing of John (Iain) Richard Connolly. Mr. Connolly died on December 4, 2007 at the age of 61.

Mr. Connolly was a well-respected Deputy Judge with the Ontario Small Claims Court, and sat at the extremely busy North York court.

Judge Connolly was survived by his former spouse Sherry and two daughters, Megan and Hillary.

Megan is a lawyer with Hull & Hull LLP. We extend to her and her family our best wishes for comfort and support during this very difficult time.

Thank you for reading.

Paul Trudelle

07 Dec

Preparation for Trial in a Contested Passing (Continued)

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Today’s blog is the last in my series addressing preparation for trial in a contested passing. The items discussed this week were certainly not meant to be, nor were they, exhaustive. Preparation necessary for a trial with narrow issues, few documents, few evidentiary concerns and an uncomplicated Estate will obviously be different than a case with numerous issues, voluminous documents, evidentiary issues and a complicated administration. The critical aspect of trial preparation is that it begins at the beginning of a case; not literally, but certainly in the sense of being mindful at pre-trial stages of the evidentiary considerations and how the evidence is to be marshalled and presented.

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