Tag: compliance

07 Feb

Hull on Esates #505 – Purchase of Estate Assets by an Estate Trustee

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This week on Hull on Estates, Jonathon Kappy and Rebecca Rauws discuss the purchase of estate assets by an estate trustee, and some steps that should be taken in the event of a purchase to ensure compliance with fiduciary obligations.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Jonathon Kappy.

08 Jun

Considering Wills Where No Strict Compliance with Execution Requirements: Part 2

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Yesterday I introduced the issue of substantial compliance with the formal requirements of making a valid will, and the case of Robitaille v. Robitaille Estate, 2011 NSSC 203 (CanLII).

After considering other cases where substantial compliance was an issue, the court went on to accept the validity of the will, even though it was not properly witnessed.

The court initially raised the question of whether the testator had testamentary capacity. The court observed that where a will complies with the formalities of execution, there is a rebuttable presumption of capacity. The court went on to hold that this same rebuttable presumption should apply to a writing that a party seeks to enforce as valid under the relevant “substantial compliance” legislation.

Moving on to the main issue, the court succinctly stated the test to be met: “I must be satisfied that the testator’s revised will represents a deliberate or fixed and final expression of her intention to dispose of her property on death.”

The court held that the writing met this test. The writing was deemed to be valid and fully effective as a will.

The court stated that the addition of the “protective trust” with respect to the bequest to one of the beneficiaries may have raised a red flag. However, the provision was similar to one that applied to another beneficiary, and furthermore, the beneficiary against which the provision applied did not contest the validity.

The case contains very little discussion as to the exact nature of the non-compliance. In the recitation of the facts, the court notes that the revised will was not witnessed at the time of the testator’s signature. Instead, the witnesses added their signatures after the fact. It may be that the fact that there were in fact witnesses to the signing of the will, and a certain level of formality, added to the comfort level of the court in making the determination.

Thank you for reading,

Paul E. Trudelle – Click here for more information on Paul Trudelle

07 Jun

Considering Wills Where No Strict Compliance with Execution Requirements: Part 1

Hull & Hull LLP Estate & Trust, Litigation Tags: , , , , , , , 0 Comments

We have blogged and podcasted in the past on the formal requirements of Ontario’s Succession Law Reform Act, and the effect of non-compliance. In Ontario, there is no provision for “substantial compliance”, and a Will not executed in accordance with the strict requirements will not be accepted: see Sills v. Daley, [2002] O.J. No. 5318 (however, see also, Sisson v. Park Street Baptist Church, [1998] O.J. No. 2885).

Other provinces, such as Manitoba, New Brunswick and Nova Scotia, have provisions that give the court discretion to order that a writing is valid and fully effective as a will even though it was not executed in compliance with the relevant legislative requirements.

In Nova Scotia, the legislation provides:

“Where a court of competent jurisdiction is satisfied that a writing embodies

(a) the testamentary intentions of the deceased; or

(b) the intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will,

the court may, notwithstanding that the writing was not executed in compliance with the formal requirements imposed by this Act, order that the writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act.”

The application of this provision was discussed in the recent Nova Scotia decision of Robitaille v. Robitaille Estate, 2011 NSSC 203 (CanLII).

There, the testator met with her lawyer to discuss a change to the appointed executor under her will. The next day, the lawyer spoke to the testator by phone (recognizing her voice) to discuss making a change so as to add a clause imposing a protective trust for the bequest to her daughter similar to the clause that was in place for her son. Before the revised will could be discussed and executed, the testator fell ill and was hospitalized. Another daughter phoned and asked the lawyer to email the will to her so that it could be executed by the testator. 

The testator then signed the will, and died a few days later.

Unfortunately, the will was not signed by the witnesses in the presence of the testator, as required by Nova Scotia’s Wills Act.

What did the court do? Tune in tomorrow.

Paul E. Trudelle – Click here for more information on Paul Trudelle

23 Oct

Court Order Compliance – Hull on Estates #82

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Listen to Court Order Compliance

This week on Hull on Estates, Sean Graham and Justin deVries talk about court order compliance, contempt and enforcement of court orders in general.

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