Listen to Keeping Good Records
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the importance of keeping good records in order to account for your conduct financially.
Listen to The Formal Passing of Accounts.
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the specifics of what happens when you have to go to court to formally pass accounts.
"Access to Justice" tends to be a topical issue in the newspapers. The general feeling seems to be that legal costs are spiraling ever upwards to the detriment of the public. Take this article from CanWest News Services.
Few would dispute that litigation costs can sometimes grow rapidly, particularly where the issues are complex or a litigant acts unreasonably. However, it seems to me that for many other legal services, there has actually been a reduction over the years. I am often surprised to find out the legal costs for the average client to: make a Will, buy or sell a house purchase, buy or sell a small business, set up a company or other routine solicitor’s work.
I suspect many lawyers, especially sole practitioners, might agree that many of these expenses have actually been reduced for clients over the years. They may even say that the standard of care tends to rise over time, so what was simple forty years ago is more complex today.
I suppose at the end of the day sympathy for lawyers doesn’t make for a great news story…
Have a great day.
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?
In Kaplun v. Kaplun, Brown J. of the Ontario S.C.J. reminded all counsel of certain basic expectations that a court has of counsel who appear in Motions Court:
1. Be on time and ready to start at 10:00 a.m. Tardiness displays a lack of respect for the court, its staff, and fellow counsel;
2. Counsel should always be courteous and civil to opposing counsel.
3. Ill feelings that may exist between clients, particularly during litigation, should not influence counsel in their conduct and demeanour towards opposing counsel.
4. When scheduling a motion, counsel should consult the responding side before setting a date.
5. Requests for an adjournment should be communicated to opposing counsel well in advance of the hearing date. The not uncommon practice of adjournment by ambush is unacceptable;
6. Counsel should follow the two basic rules of courtroom etiquette:
(a) When one counsel is standing to make submissions, the other should sit down. Success in Motions Court does not depend on the last person standing; and
(b) Avoid "Jack-in-the-box" advocacy. Standing up to interject repeatedly during opposing counsel’s oral argument on a motion is rude and wastes time. Counsel should deal with any disputed matter and respond in a reply argument.
7. Finally, Brown J. states that for Motions Court to work efficiently and fairly, the court depends upon counsel observing the three “Cs”: courtesy, civility and co-operation.
Thank you for reading.
Listen to "Joint Accounts"
Read the transcribed version of "Joint Accounts"
In Hull on Estates Podcast episode #59, David Smith and Jason Allan discuss the Supreme Court of Canada’s decisions on joint accounts in Pecore v. Pecore, 2007 SCC 17, and Madsen Estate v. Saylor 2007 SCC 18.
These two decisions concern joint bank accounts and the decision of right of survivorship, as well as the question of presumptions resulting trust and advancement.
No review of the area of dependant’s relief is complete without considering the leading Ontario Court of Appeal decision in Cummings v. Cummings (on the application for support, see (2004), 5 E.T.R. (3d) (81) (Ont. S.C) (Cullity, J.); on the appeal to the Ontario Court of Appeal, see (2004) 5 E.T.R. (3d) (97) (Ont. C.A.).
As a result of Cummings v. Cummings, the Court has forced the Estate’s Bar to reconsider matters of support under Part V of the Succession Law Reform Act ("SLRA").
Historically, claims relating to support of dependants under Part V of the SLRA were a fundamental restriction on testamentary power.
As to the question of the power of the Court itself, section 58 (1) of the SLRA confers on the Court the ability to make an order for support where a deceased has not made adequate provision for the proper support of his/her dependants. In McSween v. McSween ((1985), 21 E.T.R. 195 (Surr.Ct.)), Justice Carnwarth sets out the appropriate guidelines in considering "adequate provision for the proper support of a dependant".
The case of Cummings v. Cummings was a most difficult one for the judges to determine as the facts were somewhat unusual and were as follows:
- Bruce Norman Cummings (the "deceased") died on June 22 1998, survived by his first wife, Mary Anne, whom he married in 1968, and from whom he was separated in 1986 and from whom he was divorced in 1992.
- They had two adult children, Paul, 28, and Elizabeth, 22, both of whom were dependants. Paul was 24 years of age at his father’s death and was seriously and permanently disabled to the extent that it would take many times the value of all of the assets of the estate, both real and notional (as clawed back pursuant to section 72(1)(d) of the SLRA), to properly support him for the rest of his life. The deceased was under an obligation to provide support by Court order to Paul.
- His daughter, Elizabeth, was eighteen years of age at her father’s death and was attending university and was entitled to support under the Court order as well.
- The deceased and his second wife, Ruta, commenced living together in 1988 and were married in 1997.
- At the time of the divorce from his first wife, the deceased was earning approximately $300,000 per year and his employment was terminated in 1994.