Tag: Common Law
Once in a blue moon I find myself considering and marveling at the genius and breadth of the Common Law. I am amazed by the Common Law’s ability to function effectively in what otherwise appear to be remarkably different parts of the world, particularly in the area of Estates and Trusts.
Of course, this phenomenon is a historical after-effect of the size and reach, particularly in the 17th to and 19th Centuries, of the British Empire. Military history buffs will know this was largely attributable to the Royal Navy’s increasing dominance over the oceans of the world. During that time (and before), the Common Law spread from the relatively tiny islands of the UK to vast and diverse areas: from India, Hong Kong, parts of Africa and Singapore to tiny island states in the Caribbean such as Barbados, the list goes on and on.
No doubt Estate Law has its local variants in each location, but I am more often than not struck by the similarities. The attached article about Wills and Probate in Hong Kong would not be much different in Ontario, and I expect most non-lawyers would be hard-pressed to spot the differences. Here’s a website encouraging people to outsource legal services to India, including trust deeds, although to my mind that may exaggerate the cross-jurisdictional similarities of Estates law. It seems to me it would still be best to retain a local lawyer in whatever jurisdiction you’re dealing. For the truly exotic, review this website talking about how the governing Estate law in Singapore shifted from the Common Law to Islamic law.
With Canada’s direct reliance on British jurisprudence lasting until 1949 when final appeals to the Judicial Committee of the Privy Council were ended, we certainly have played our role in this pattern and continue to do so.
Thanks for reading.
Listen to the deemed undertaking rule.
This week on Hull on Estates, Paul and Allan discuss the deemed undertaking rule and its application to estate matters.
A Dutch Treat; Conflict of Laws and Estate Administration – Which Law Governs? – Hull on Estates Podcast #57
Read the transcribed version of "A Dutch Treat; Conflict of Laws and Estate Administration"
During Hull on Estates Episode #57, Justin de Vries and Megan Connolly discuss an ongoing client matter which has come out of the Netherlands. This matter raises issues of conflict of laws, the Divorce Act, the Succession Law Reform Act, R.S.O. 1990, c. S.26, and dependant support claims.
For more information on the conflict of laws, as it relates to this case, please see:
- McCallum v. Ryan Estate,  O.J. No. 1088 (SCJ)
- Re Montizamber Estate,  O.J. No. 1035 (SCJ)
- Smallman v. Smallman Estate,  O.J. No. 1718 (OJC – Gen. Div.).
Joint accounts are a common tool in estate planning. Where accounts are held by two individuals jointly, both hold an equal and undivided share. When one dies, their interest terminates, and the surviving joint owner is left with the entire account. This results in numerous benefits from an estate planning perspective. However, it often also results in numerous lawsuits. The latest issue of Law Times includes an article which considers the controversial subject of joint accounts.
In “Awaiting Certainty on Jointly Held Assets,” Christopher Guly considers the debate over how to adjudicate challenges to jointly held accounts. He examines two decisions of the Ontario Court of Appeal, Saylor v. Brooks and Pecore v. Pecore. Both were recently heard by the Supreme Court of Canada.
The facts in Saylor and Pecore are somewhat similar in that both involve challenges brought by beneficiaries to accounts that were jointly held between a Deceased and his daughter. In both cases, the beneficiaries argued that the Deceased did not intend for the surviving daughter to acquire the entire account and that the funds should be returned to the Deceased’s estate.
In considering the beneficiaries’ claims, the Court diverged from the historic reliance on presumptions. In the past, a transfer of money or property between strangers was presumed to be a loan, while a transfer between a father and his wife and/or children was a presumed gift. Of course, the presumptions only operated as starting points and were rebuttable.
In Saylor and Pecore, the Court ruled that it must first consider the totality of the evidence and determine the intention of the Deceased at the time the joint account was created. Only if intention cannot be clearly determined will the Court then turn to the presumptions.
Sounds simple? Well, as Guly points out by reference to discussions with practitioners, including Ian Hull, the decisions raise numerous concerns. Namely, what evidence do you use to prove intention? What if you do not have available evidence? How much evidence is necessary to avoid the presumption?
I will be interested in reading the Supreme Court’s answers to these difficult questions.
For more background information on legal issues surrounding joint accounts, check out Ian and Suzana’s previous blogs found in the "Joint Accounts" category on the blogpage.
Thanks for reading.