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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.