Tag: declarations of death act

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

02 Nov

Missing and Presumed…Alive? Property Rights under the Absentees Act

Garrett Horrocks Estate & Trust, Estate Planning, Executors and Trustees, Hull on Estates, Public Policy, Trustees Tags: , , , , , 0 Comments

On Monday’s blog, I discussed the mechanisms available to Ontario courts under the Declarations of Death Act to deal with the estate of a deceased person who “returns from the dead.”  In today’s blog, I thought it might be useful to look at similar provisions under Ontario’s Absentees Act and to distinguish between the purpose of each Act as well as the authorities of the court thereunder.

The most obvious distinction is evident in the titles of each Act.  The Declarations of Death Act, unsurprisingly, concerns individuals that have been declared deceased by the courts.  In contrast, and perhaps even more unsurprisingly, the Absentees Act deals with “absentees.”

The Absentees Act gives no authority to the courts to enact distributions of property pursuant to a testamentary document.
The Absentees Act gives no authority to the courts to enact distributions of property pursuant to a testamentary document.

An absentee is defined under section 1 of the Absentees Act as a person, ordinarily resident in Ontario, who “has disappeared, whose whereabouts is unknown, and as to whom there is no knowledge as to whether he or she is alive or dead.”  Similar to the analogous provision in the Declarations of Death Act, section 2 of the Absentees Act allows the Superior Court of Justice to declare a person to be an absentee if a “due and satisfactory inquiry has been made.”

 

The difference in finality of an order declaring an individual to be deceased rather than merely an absentee is also reflected in the authority given to the courts in dealing with an individual’s property under each Act.  Once an individual is declared deceased, that individual’s property is subject to distribution in accordance with any testamentary documents that he or she may have left, such as a will.  Without going into significant detail, the property rights of the testator as well as those of any beneficiaries will be substantially impacted as a result of a declaration of death.  The courts will be reluctant to trigger these rights absent a conclusive determination of death.

As a result of the foregoing, the Absentees Act gives no authority to the courts to order distributions of property pursuant to a testamentary document.  In effect, the authority of the courts over the property of an absentee is severely limited, at least until he or she is declared as such in accordance with the Declarations of Death Act, or unless evidence of his or her death is produced.

Rather than create circumstances that may trigger distributions of an absentee’s property, the Absentees Act may require an individual to instead ensure its upkeep while the absentee is, well, absent.  Section 4 of the Absentees Act allows a court to make an order to ensure the “custody, due care and management” of an absentee’s property by a committee, if needed.

This appointee would essentially function as a caretaker of the absentee’s property.  The committee has all of the powers and duties of a guardian of property under the Substitute Decisions Act, including the authority to expend the absentee’s own funds for the purposes of determining whether he or she is alive or dead.

Thanks for reading.

Garrett Horrocks

30 Oct

Doppelgangers and the Declarations of Death Act

Garrett Horrocks Uncategorized Tags: , , , , 0 Comments

 

Tis the season of goblins and ghouls, of ghosts and gremlins, when the boundaries between the natural and supernatural become ever so slightly blurred.  Pure fiction, no doubt…or is it?  Well, yes, most likely.  However, as Mark Twain famously opined, truth can often be stranger than fiction.  Consider the following story that’s part Dr. Jekyll and Mr. Hyde and part Twilight Zone, one that presents a curious scenario to the estate litigators among us.

Lawrence Bader was a salesman from Akron, Ohio.  One afternoon in May 1957, Mr. Bader rented a boat to go fishing on Lake Erie and told his wife that would be back later that evening.  A few days earlier, Mr. Bader had recently designated his wife as a beneficiary on several life insurance policies totaling approximately $40,000.

Returning Distributed Estate Assets under the Declarations of Death Act
The court can order that the property of an individual, who was declared deceased by the court, be returned to them if they later turn up alive.

Severe storms engulfed the area the night of Mr. Bader’s expedition, and he did not return home as promised.  The following morning, the Coast Guard discovered his empty fishing boat, bruised and battered by the storm and washed up on shore miles from where he had departed.  There was no sign of Mr. Bader.  He was presumed “lost at sea.”’

In 1960, following an application from his wife, the probate court in Summit County, Ohio declared Mr. Bader legally deceased.  Similar authority is granted to courts in Ontario.  The Declarations of Death Act allows an “interested person” to apply to the court for an order that an individual has died if the individual “disappeared in circumstances of peril” and the applicant has “no reason to believe that the individual is alive.”  Accordingly, Mr. Bader might reasonably have been declared deceased by an Ontario court under similar circumstances.

The intriguing tale of Mr. Bader’s whereabouts does not end there, however.  In 1965, more than five years after he was declared legally deceased, a friend of Mr. Bader’s was attending a sports convention in Chicago and encountered an archery enthusiast who bore an uncanny resemblance to Mr. Bader.  In an almost clichéd homage to classic horror and science fiction, the doppelganger purportedly wore an eyepatch and sported a mustache.

The doppelganger introduced himself as Fritz Johnson, a media personality from Omaha, Nebraska.  After speaking to him over the phone at the insistence of the friend, Mr. Bader’s brothers flew to Chicago to meet the man they firmly believed was their brother.  However, the doppelganger appeared to have no memory of his wife and family, his seafaring escapade, or indeed any details of his former life.

Mr. Johnson had purportedly arrived in Omaha only a few days after Mr. Bader had disappeared.  In the years since his apparent alter-ego was declared legally deceased, Mr. Johnson married, fathered a son, became a newscaster, and developed a talent for archery.  Curiously, Mr. Bader’s brothers confirmed that he had been regarded as a skilled archer prior to his disappearance.

To Mr. Johnson’s dismay, the authorities confirmed by way of a fingerprint analysis that Mr. Bader and Mr. Johnson were indeed one and the same, notwithstanding that the latter apparently had no memory of the former.  They surmised that the entire ordeal was merely an attempt by Mr. Bader to get a fresh start, free of debts and obligations, under a new identity.  While this story is likely more hucksterism than it is Hitchcock, there are useful points to discuss.

As estate litigators, our primary area of interest with respect to the Bader-Johnson conundrum would, no doubt, pertain to the distribution of Mr. Bader’s estate.  In particular, it is worth discussing what happens to the estate of an individual who later turns up alive, especially if distributions in accordance with a will, for example, had been made prior to his return.  For those of us who don’t anticipate an undead doppelganger reappearing to cause turmoil for our estate trustees, the approach is fairly streamlined.

Ontario’s Declarations of Death Act provides a mechanism whereby the court can order that the property of an individual, who was declared deceased by the court, be returned to them if they later turn up alive.  Section 6(1) of the Act provides that all distributions out of the estate of an individual who is declared deceased thereunder are final distributions, subject to certain considerations.  One such consideration, under section 6(3), provides that a court may make an order requiring the beneficiary to re-convey to the deceased all or part of any property distributed to him or her “if it is just to do so”.  In other words, a beneficiary of the estate of a now-undead person that has received a distribution out of that estate may be ordered to return all or part of it.

Despite Mr. Johnson’s insistence to the contrary, there was substantial evidence to support that he was, in fact, Mr. Bader, even though he purportedly had no memory of him.  While he ostensibly returned from the dead under a pseudonym and having suffered a bout of amnesia, neither are factors that an Ontario court would likely consider in determining what would happen to his estate.

On Thursday, we will look at similar provisions under Ontario’s Absentees Act.

Thanks for reading.  Happy Halloween!

Garrett Horrocks

 

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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09 Mar

Missing Persons and Declarations of Death

Umair Estate & Trust, Executors and Trustees, General Interest, In the News, Litigation, News & Events, Power of Attorney, Trustees Tags: , , , , , 0 Comments

Earlier this week, I blogged about the astonishing case of Anna and Kym Hakze, two Alberta sisters whose whereabouts were discovered more than thirty years after they had been missing. I also discussed the Absentees Act, which creates a legal mechanism in Ontario for a missing person’s affairs to be put under the management of a committee.

In today’s blog, I will be discussing the Declarations of Death Act, 2002, which provides the Court with the authority to declare a missing person as dead.

Declarations of Death Act, 2002: an overview

Pursuant to section 2 of the Declarations of Death Act, 2002, an “interested person” can apply to the Superior Court of Justice of Ontario, on notice to any other interested persons of whom the applicant is aware, for an Order declaring that an individual is dead.

The Court will grant such relief if it is satisfied that the missing person has disappeared in circumstances of peril (pursuant to subsection 2(4) of the Act) or if they have been absent for at least seven years (pursuant to subsection 2(5) of the Act).

Who is an “interested person”?

An application for a declaration of death can be commenced by an “interested person,” a term that is defined at section 1 of the Act.

In addition to next of kin and married and common-law spouses, the Act defines “interested person” to include:

  • a person named as an executor of the individual’s Estate under a Will or a person who may be entitled to be appointed as an administrator of the Estate on an intestacy;
  • a guardian or attorney for personal care or property under the Substitute Decisions Act;
  • a person who is in possession of property owned by the missing individual;
  • if there is a contract of life insurance or group insurance insuring the missing individual’s life, the insurer and any potential claimant under the contract; and
  • if the missing individual has been declared an absentee under the Absentees Act, the absentee’s committee.

The test for a declaration of death

An applicant must satisfy the Court, on a balance of probabilities, that:

  • the individual has disappeared in circumstances of peril or been absent for at least seven years;
  • the applicant has not heard of or from the individual since the disappearance or during the seven-year period;
  • to the applicant’s knowledge (after making reasonable inquiries), no other person has heard of or from the individual during the seven-year period;
  • the applicant has no reason to believe that the individual is alive; and
  • there is sufficient evidence to find that the individual is dead.

In the event that the Court is not satisfied that there is sufficient evidence to declare the person dead, section 3 of the Act provides the Court with the ability to provide the alternative relief of making an Order under the Absentees Act.

What are “circumstances of peril”?

In considering whether to bring an application under subsection 2(4) of the Act, an applicant must consider if the circumstances in which the individual disappeared would constitute “circumstances of peril.”

Although such circumstances are not defined under the Act, the Court has held that “peril” means a “situation of serious and immediate danger.” The Court will undertake a fact-specific inquiry, and the applicant should ensure that there is sufficient evidence to conclude that the missing individual was in serious and immediate danger prior to their disappearance.

Thank you for reading,

Umair Abdul Qadir

Other Articles You May Be Interested In:

 

07 Mar

The Absentees Act: Administering the Assets of Missing Persons

Umair Estate & Trust, General Interest, In the News, News & Events, Power of Attorney Tags: , , , 0 Comments

Last week, the news of the location of two Alberta sisters who had been missing for more than thirty years made headlines across the country.

Anna and Kym Hakze, originally from Lethbridge, Alberta, were last seen in the mid-1980s and last heard from in 1993. The sisters were formally reported as missing in 2003.

The case for the search for the sisters went cold, and local police went as far as submitting the family’s DNA to detectives during the investigation of convicted serial killer Robert Pickton in British Columbia. As reported on CBC News, a 1984 newspaper clipping and a tip from the public ultimately provided a breakthrough and helped police locate the sisters’ whereabouts.

Who administers a missing person’s property?

The story of the Hakze sisters is particularly newsworthy because of how uncommon it is for a missing person to be found after such a significant length of time. In a press release issued by the Lethbridge Police Service, Staff Sergeant Scott Woods noted, “After so many years it’s very unusual for a case like this to end with good news.”

Unfortunately, many families of missing persons are only left with unanswered questions. In addition, the missing person’s assets may be left unmanaged and unadministered, which can be particularly problematic if the person has creditors or dependants who require immediate access to these funds.

In Ontario, the Absentees Act creates a legal mechanism for a missing person’s affairs to be put under the management of a committee.

The “due and satisfactory inquiry” requirement

The Act provides the Superior Court of Justice to declare a person to be an absentee, if it is shown that “due and satisfactory inquiry” has been made regarding their whereabouts. The Court also has the power to direct such further inquiries to be made and proceedings to be taken as the Court considers expedient before an order is made.

It should be noted that a simple missing person report prepared by the police may be insufficient to justify a declaration under the Absentees Act. Applicants must be prepared to demonstrate that they have conducted reasonable, independent inquiries into the missing person’s whereabouts.

An application under the Absentees Act can be made by the Attorney General; any one or more of the missing person’s next of kin; the missing person’s married or common law spouse; a creditor; or any other person.

Appointment of a committee

If the Court is satisfied that there is sufficient evidence to declare the missing person to be an absentee, section 4 of the Act also empowers the Court to appoint a committee for the custody, due care and management of the absentee’s property. A trust corporation may be appointed as such a committee, with or without other persons.

Where such a committee is appointed, section 6 of the Act states that the powers and duties of the Court and the committee are the same as the powers and duties of the Court and of a guardian of property under the Substitute Decisions Act, with necessary modifications. Thus, the Absentees Act imports the requirements that apply to the management of the property of incapable persons in Ontario.

The Absentees Act provides a useful remedy for families of missing persons and other interested parties. Later this week, I will be blogging about the Declarations of Death Act, 2002, and the circumstances in which a Court will declare a person to be dead.

Thank you for reading,

Umair Abdul Qadir

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04 Feb

Lord Lucan: Declared Dead (Twice) and Still Missing

Doreen So General Interest, In the News, News & Events Tags: , , , , , 0 Comments

In 1974, Lord Lucan, British aristocrat (think James Bond and Martinis, according to the New York Times), vanished after the body of his children’s nanny was found dead in the basement of his house.

A year later, in 1975, Lord Lucan, otherwise born as Richard John Bingham, the seventh Earl of Lucan, was declared the killer of his children’s nanny. Since 1974, Lord Lucan was never found notwithstanding an international Scotland Yard manhunt.

25 years later, Lord Lucan was declared dead in 1999, which allowed for the devolution of his assets to his Estate.

By virtue of a law that came into effect in 2014, Lord Lucan’s son, George Charles Bingham, petitioned the Court for a death certificate in order to become the eighth Earl of Lucan. Neil Berriman, the son of the murdered nanny, opposed Mr. Bingham’s petition for a death certificate on the basis that Lord Lucan could still be alive.

42 years later, the High Court has ruled that Lord Lucan is now presumed dead and a death certificate was issued on February 3, 2016.

In Ontario, the Declarations of Death Act, 2002 governs the relief sought by Mr. Bingham in London. An Application may be made to the Superior Court of Justice for a declaration that an individual has died if i) the individual disappeared in circumstances of peril; or ii) if the individual has been absent for seven years.

Thanks for reading!

Doreen So

09 Nov

Funeral Crasher

Hull & Hull LLP In the News Tags: , 0 Comments

A crowd of people have gathered. They look sad and many are crying. They are all ignoring you. They are all wearing black. You see the casket at the front of the room, and hear the priest begin to speak a few words about the Deceased. It is only then that you realize that you have stumbled upon your own funeral. 

You sit up with a start in a cold sweat. Your first thought is – “Thank God. It was just a dream”.  What if it wasn’t? 

Only a few weeks ago, a man in Sao Paulo, Brazil, shocked his family when he interrupted a funeral being held for HIM in his mother’s home. This was largely the case of mistaken identity. Two men who resembled one another and both worked as car washers were confused when one of the men had been shot dead, as reported in the Huffington Post. That doesn’t change the fact that this played out much like a movie. People fainted and others ran away. Ultimately, the family was relieved. 

This story seems almost unbelievable, but can’t be viewed as impossible.  In Ontario, we have a piece of legislation titled the Declarations of Death Act, 2002, S.O. 2002, Ch. 14., which allows for the Court to declare an individual dead in certain circumstances, notably where the person has disappeared in circumstances of peril or where a person has been missing for more than seven years. While this doesn’t cover mistaken identity, it could, in theory, result in a person being found alive after a declaration of death, and hypothetically they could walk into their own funeral. A quick reading of the case law that has dealt with this legislation will show that the Courts render a declaration only where it is felt that the evidence is overwhelming. We are unlikely to have any situations as in Brazil happening here anytime soon. Although…mistaken identity remains a possibility here too. In my view, any sort of rising of the ‘undead’ is most likely to occur in popular fiction.

Thanks for Reading,

Nadia M. Harasymowycz

28 Aug

Son Wants Nazi Father Declared Dead

Hull & Hull LLP News & Events Tags: , , 0 Comments

The son of the notorious Nazi criminal Aribert Heim wants his father declared dead so that he and his siblings can manage his father’s assets. Aribert Heim fled Germany in 1962 when a warrant was issued for his arrest. The Simon Wiesenthal Centre has been tracking him since that time but has never captured him.

In 1997, the son and his sister discovered a German bank account in their father’s name containing 1.78 million dollars. The German government froze the bank account. The son says that if his father is declared dead and he inherits money from his father, he will donate it to the study of the Mauthausen concentration camp.

His son insists that he has not see his father since 1962 and has had no contact with him since that time with the exception of receiving two unsigned notes in 1962 and 1967. His father would turn 94 this year and he assumes that he is likely dead. However, throughout the last four decades Aribert Heim has been spotted numerous times and as late as last month; the Simon Wiesenthal Centre believed that they have found evidence of him living in Chile.  The son says that he is working with a lawyer to provide evidence of his father’s death.

In Canada, the court is authorized by the Declarations of Death Act to determine whether a person is dead on the basis of circumstantial evidence or the rule of common law which presumes a person dead after an unexplained absence of seven years or more. Click here to listen to a podcast on the Declaration of Death Act and the Absentee Act. Additionally, under the Rules of Civil Procedure, an interested party can also apply for the opinion, advice, and direction of the court.

Thanks for reading,
 

Diane Vieira

07 Jul

Declarations of Death Act – Hull on Estates Podcast #118

Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , , , , , , , , , , , , 0 Comments

Listen to Declarations of Death Act

This week on Hull on Estates, Sean Graham and Rick Bickhram talk about the Declarations of Death Act. They discuss what happens when a person goes missing from a jurisdiction and some possible remedies.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

 

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