Tag: declaration of death

11 Nov

Can there be unexpected financial consequences of retroactive proof of death?

Kira Domratchev Estate Litigation Tags: , 0 Comments

In Threlfall v. Carleton University, the Supreme Court of Canada held that a deceased’s estate must repay pension payments received post-death. Although paying back a windfall seems like a common-sense outcome that would not require the analysis of the highest court in Canada, the 50-page 6/3 split-decision tells us it is not as simple as one would think.

In this case, Mr. George Roseme (“R”), a retired Carleton University professor who was suffering from Alzheimer’s disease, disappeared from his home in Quebec in 2007 after going for a walk. R’s remains were not found until almost six years later. During that passage of time, pension payments he had been receiving from the University at the time of his disappearance continued to be paid. Notably, the University did attempt to cease payments within a year or two after R disappeared, but R’s surviving spouse objected, since under the Quebec Civil Code one is presumed to be alive for seven years unless proof of death is obtained. The University reluctantly continued the payments.

After discovery of R’s death in 2013, and a determination that he died just one day after his disappearance in 2007, the University sought to recover the overpayment from R’s estate and surviving spouse. It was successful throughout. The Supreme Court of Canada decision, although lengthy and multifaceted, seemed to largely turn on the following findings:

  • On the plain language of the pension plan, benefits were to end upon R’s actual death, not the date that it was discovered or officially recognized;
  • The rebuttal of the presumption of life must be assessed retroactively, meaning that payments should only continue during lifetime. Given R’s date of death, this extinguished the entitlement to the pension payments made while R was an absentee. A prospective approach to the rebuttal of the presumption of life would generate a windfall not intended by the absence regime; and
  • The payments were treated, with a retrospective view, as having been made in error, which obliges the recipient to make restitution.

The impact of the decision is weighty, with R’s surviving spouse being required to reimburse the University almost $500,000 in pension payments.

Considering this from the Ontario perspective, I look to the Declarations of Death Act. In this statute, once the seven-year absentee period expires, an application seeking a declaration of death can be brought. I note, though, that the Act contains provisions permitting the court to amend or revoke the order, as well as to make orders regarding the preservation or return of property.  So if you find yourself in the unique circumstance of receiving assets post-absenteeism, perhaps setting them aside would be a good idea, because when things seem too good to be true, they usually are.

Thanks for reading,

Natalia Angelini

P.S. A good summary article can be found here. Our blogs below also touch on some intriguing declaration of death cases:

https://hullandhull.com/2017/10/doppelgangers-declarations-death-act/

https://hullandhull.com/2014/03/premature-declarations-of-death/

https://hullandhull.com/2007/12/interest-not-payable-on-insurance-proceeds-until-declaration-of-death/

20 Mar

I’m not dead yet – Having the court declare you “undead”

Stuart Clark General Interest Tags: , , , , , , , , 0 Comments

There is a famous scene in Monty Python and the Holy Grail where an individual tries to include his very much still alive relative on a cart carrying out plague victims to the still alive individual’s protests. Upon being presented to be taken away, the individual loudly protests “I’m not dead yet” to the annoyance of the individual trying to have them taken away, resulting in a back-and-forth about whether they will be dead soon and should still be included on the cart. Hilarity ensues.

This scene from Monty Python always plays through my mind whenever I hear stories of individuals who are incorrectly declared dead by the court. The Toronto Star recently reported on a case about a man from Romania who returned from working abroad to find that his wife had had him declared dead by the court while he was away. Despite showing up to his own hearing to reverse the Order declaring that he was dead, the court refused to reverse the Order, saying that it was too late for him to do so. Stories such as these are surprisingly common, with an Ohio man having found himself in similar circumstances in 2013.

In Ontario, the process by which an individual is declared dead in absentia when there is no body is governed by the Declarations of Death Act, 2002. Although the Declarations of Death Act does not set out a process by which an individual who is still alive could reverse an Order finding that they were deceased, it notably does not contain any provision barring the reversal of such an Order, and does contain language providing what is to occur with the “deceased” individual’s property should they later found to be alive such that it appears that such an Order is possible.

Section 6(1) of the Declarations of Death Act provides that when an Order has been made declaring an individual dead, and their estate has been distributed, such a distribution is final even should the “deceased” individual subsequently be found to be alive. While section 6(3) grants the court special powers to order specific property be returned to the deceased individual, absent a specific court order to the contrary, the “deceased” individual’s property is now the property of those to whom it was distributed.

While it appears the Ontario court can reverse an Order incorrectly finding you to be deceased, you may not be so lucky in getting your stuff back. Maybe now we know why the man was so loudly protesting “I’m not dead yet” in the Monty Python sketch.

Thank you for reading.

Stuart Clark

10 Mar

What Happens When a Missing Person Comes Back From the “Dead”?

Umair Estate & Trust, Executors and Trustees, General Interest, In the News Tags: , , , , , 0 Comments

This week, I have been blogging about the case of Anna and Kym Hakze, two sisters from Alberta who were found more than thirty years after they last made contact with their families.

I blogged about the Ontario Absentees Act, which allows for a missing person’s affairs to be put under the management of a committee if the Court is satisfied that a “due and satisfactory inquiry” has been made into their whereabouts. Yesterday’s blog talked about the Declarations of Death Act, 2002, which gives the Superior Court of Justice of Ontario the power to declare that a missing person is dead if the Court is satisfied that they disappeared in circumstances of peril or that they have been absent for at least seven years.

But the case of the Hakze sisters raises another interesting legal question: what happens in Ontario when a missing person, who has been declared an absentee under the Absentees Act or dead under the Declarations of Death Act, 2002, is later found to be alive?

When an absentee is no longer an absentee

As previously discussed, section 4 of the Absentees Act empowers the Court to make an order for the appointment of a committee for the custody, due care and management of the property of the missing person. The committee has the same duties and powers as a guardian of property under the Substitute Decisions Act, 1992.

However, section 3 of the Absentees Act states that a Court can make an order declaring and superseding, vacating and setting aside an order declaring a person as an absentee on an application, if it is satisfied that the person has ceased to be an absentee.

It is important to note that any acts or things done in respect of the estate of the absentee while the original order was in force are excepted from section 3 of the Absentees Act. Thus, the Act does not purport to undo any steps that were taken by the committee to manage the person’s property while the person was an absentee.

The legal effect of coming back from the “dead”

Once a missing person has been declared dead pursuant to the Declarations of Death Act, the assets of their estate may be administered and distributed. But what happens if the missing person is later discovered to be alive?

Pursuant to subsection 6(1) of the Act, if an order has been made that applies for the purposes of dealing with the missing person’s estate and all or part of the estate has been distributed in accordance with the order, the distribution is final and the missing person is not entitled to recover the distributed property.

It should be noted subsection 6(1) does not apply if the personal representative had reasonable grounds to believe that the missing person was not, in fact, dead. If this is the case, the personal representative should not take any steps to administer the missing person’s estate until the order is confirmed by the Court.

The Act does provide the Court with discretion, if it is of the opinion that it would be just to do so, to make an order requiring a person who was in receipt of the missing person’s property to reconvey the property or pay a specified amount to the missing person. In making such an order, the Court considers all the circumstances, including any inconvenience or hardship to the person subject to the order. However, absent such an order, any property that has been properly distributed is deemed to belong to the recipient.

Any undistributed property that has not been distributed when the missing person is discovered to be alive remains their property and is deemed to be held in trust pursuant to the Trustee Act.

Thank you for reading,

Umair Abdul Qadir

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21 Aug

Back from the Dead

Joshua Eisen In the News Tags: , 0 Comments

A recent article in the Chronicle Herald tells the story of a couple in Halifax who received a letter from the Canada Revenue Agency regarding Old Age Security benefits.  The letter was addressed to the Estate of Anna Zahorski, and indicated that her benefits would be coming to an end since she had passed away.  This was surprising and unfortunate news, especially for Anna Zahorski.  Who wouldn’t be alarmed to receive notice of their own death from the CRA?

The article goes on to detail the struggle faced by the Zahorskis in trying to remedy this administrative error.  One of the steps taken was to attend with Anna at a Service Canada location to prove that she was in fact alive.

In Ontario, legislation allows a court to declare a person to be dead when they have disappeared in circumstances of peril, or when they have been missing for at least seven years.  The Declarations of Death Act, 2002 provides that an interested person can apply, on notice to any other interested persons, for an order declaring that an individual has died.

Ontario’s Act makes provision for a scenario where a person who was previously declared to be dead under the Act is discovered to be alive.  If that happens, Ontario’s Act provides that the person’s personal representative should immediately stop taking steps in the administration of that person’s estate.  If part of the estate has already been distributed, that distribution is final.  The court does have power to order that property be returned to the person if it would be just to do so.  Any property belonging to the person that has not been distributed yet is deemed to have been held in trust for them and may be returned as the Court may direct.  Nova Scotia’s legislation is a little bit different in some respects.

In any event, it is hoped that resorting to the “found alive” provisions will not be necessary for the Zahorskis, if these provisions are even applicable.  While the circumstance faced by the Zahorskis must be very frustrating for them, the article hints that they may appreciate the humour in it as well.

19 Apr

Missing Persons Part II – The Declarations of Death Act

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

Yesterday we looked at situations where a person is missing and there is a need to manage their property in their absence. But what if the absentee never returns? In such circumstances, an “interested person” may make an application to the Court pursuant to the Declarations of Death Act, 2002, S.O. 2002, c. 14. An interested person is any person who is or would be affected by an order declaring that an individual is dead.

The Court may make an order declaring that an individual has died if the Court is satisfied that the person has disappeared in circumstances of peril or has been absent for at least seven years. 

The applicant must show that:

a)      he or she has not heard of or from the person since their disappearance in circumstances of peril or within the 7-year period;

b)      to his or her knowledge, after making reasonable inquiries, no other person has heard from the individual;

c)      there is no reason to believe that the person is alive; and

d)      there is sufficient evidence to find that the person is dead 

The date of death will be the date upon which the evidence suggests the person has died or the date of the application, if based on a 7-year absence.

A declaration of death is not an easy one to obtain. It will apply for all purposes unless specified otherwise by the Court in the Order. 

A recent case that is helpful in considering what constitutes “sufficient evidence” for a declaration of death isRe Mezo, 2010 ONSC 4968 (CanLII). In Re Mezo, the missing person had been admitted to the hospital for psychiatric difficulties. She left the hospital on a day pass and had not been heard from for 10 years by family or friends. The Court declared her dead pursuant to subsections 2(3) and 2(5) of the Declarations of Death Act. The Court found that, on a balance of probabilities, there was sufficient evidence to find that the missing person was dead because:

a)      she left the hospital leaving important pieces of identification behind;

b)      she had not accessed her bank account or other financial assets since her disappearance;

c)      she never returned to her apartment or retrieved her car; and

d)      she had absolutely no contact with members of her family who obviously cared about her safety and whereabouts.

Sharon Davis – Click here for more information on Sharon Davis. 

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