In today’s podcast, Paul Trudelle and Garrett Horrocks discuss the court’s decision in Calmusky v Calmusky, which deals with the application of principles from Pecore v Pecore to designated assets.
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There are instances when a lawyer is required to make efforts to “locate missing heirs” of an estate, and until the heirs are identified and located these efforts can be described as being to the “benefit of the unknown heirs”. This work has been done by lawyers for over one hundred years. One of the leading cases is from 1902, that of Neville v Benjamin (1902) 1 Ch 723, that sets out some of the steps that can be taken to obtain a “Benjamin order” in cases where an estate trustee is not able to distribute and finalize administration of an estate because of missing heirs. In popular culture, being a person identified as a “missing heir” has been the subject of much interest. “Big legacies awaiting lost heirs” was the premise of a segment on the Art Linkletter show, where he conducted a television search for missing heirs. The Linkletter show was broadcast in various forms from 1945 to 1970 and had huge audiences in the millions.
A 1965 article in the Madera California Tribune newspaper on the Linkletter search for missing heirs started with the attention getting line “Do you ever wish a long lost relative would leave you a legacy of a bundle of money?” One story featured was of a talented machinist who chose to live the life of a recluse, existing on a diet of dry cereals. It was also known he didn’t trust banks and that he preferred to store his money by hiding it in his house. He died at age 58 and was dead several days before someone made the discovery. The house was robbed of the cash, but the remaining business assets were sold in the estate sale. The business assets went to a sister of the deceased, who only learned of it from a neighbor after she heard it on the Linkletter show. Wouldn’t you want to be “found” if you were indeed “a missing heir”, whether by a lawyer or a television show?
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While digital assets constitute “property” in the sense appearing within provincial legislation, the rights of fiduciaries in respect of these assets are less clear than those relating to tangible assets. For example, in Ontario, the Substitute Decisions Act, 1992, and Estates Administration Act provide that attorneys or guardians of property and estate trustees, respectively, are authorized to manage the property of an incapable person or estate, but these pieces of legislation do not explicitly refer to digital assets.
As we have previously reported, although the Uniform Law Conference of Canada introduced the Uniform Access to Digital Assets by Fiduciaries Act in August 2016, the uniform legislation has yet to be adopted by the provinces of Canada. However, recent legislative amendment in one of Ontario’s neighbours to the west has recently enhanced the ability of estate trustees to access and administer digital assets.
In Alberta, legislation has been updated to clarify that the authority of an estate trustee extends to digital assets. Alberta’s Estate Administration Act makes specific reference to “online accounts” within the context of an estate trustee’s duty to identify estate assets and liabilities, providing clarification that digital assets are intended to be included within the scope of estate assets that a trustee is authorized to administer.
In other Canadian provinces, fiduciaries continue to face barriers in attempting to access digital assets. Until the law is updated to reflect the prevalence of technology and value, whether financial or sentimental, of information stored electronically, it may be prudent for drafting solicitors whose clients possess such assets to include specific provisions within Powers of Attorney for Property and Wills to clarify the authority of fiduciaries to deal with digital assets.
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