Tag: estate law blog

14 Jan

More Streamlined Court Processes?

Natalia R. Angelini Litigation, Uncategorized Tags: , , 0 Comments

It has not always been easy to keep up with the rapid technological changes to court processes and court hearings that have been happening over the last several months. We have all needed to adapt, and adapt we have! Although, to me, in person hearings remain the ideal way in which to interact with counsel, clients and judges, I admit the Zoom court hearings have been a welcome respite from the added time and stress of the early morning drive to far-away court houses in different cities to argue one case or another. Clients may also appreciate the cost-savings that result from less paper and less travel and waiting times.

Streamlining of court processes has recently been solidified by way of several changes to the Rules of Civil Procedure, and a couple of my colleagues have podcasted about it here. This trend has now also expanded to the Supreme Court of Canada, where the leave application process is reported to be changing effective January 27, 2021. The changes can be found here, and facilitate the electronic filing of material.

Should there be more changes to come, we will keep you posted.

Thanks for reading and have a great day,

Natalia R. Angelini

12 Jan

What’s the Update on the Calmusky Case?

Natalia R. Angelini Estate & Trust, Uncategorized Tags: , , , , 0 Comments

I previously blogged about the Calmusky v. Calmusky decision here, in which decision the court concluded that resulting trust presumptions apply to the beneficiary designation under a Registered Income Fund (RIF). As such, the onus was put on the named beneficiary of the RIF to rebut the presumption that he was holding the RIF in trust for his late father’s estate. The decision was not appealed.

The Ontario Bar Association (OBA), and primarily the OBA’s Trusts and Estates section, has considered the impacts of the case and has delivered a Submission to the Attorney General of Ontario and Minister of Finance with proposed remedies.

The potential effects cited by the OBA are worrying, and include that (i) it may compel financial advisors to provide what amounts to legal advice when such designations are being made, (ii) it may increase litigation where the named beneficiaries of plans, funds and policies are not the same residuary beneficiaries of an estate, (iii) it may create uncertainty in contracts (e.g. cohabitation and/or separation agreements) that use beneficiary designations as a way to secure support payments, and (iv) it may defeat the testamentary intentions of Ontarians who previously made their beneficiary designations and cannot make new ones.

The OBA Submission proposes legislative amendments with retroactive effect to remedy the issue. Such proposed amendments are to add a subsection to each of the Succession Law Reform Act (s. 51) and Insurance Act (s. 190) clarifying that when a designation is made, no presumption of resulting trust in favour of the estate is created.

We will provide an update once we know more.

Thanks for reading and have a great day,

Natalia R. Angelini

11 Jan

How Can We Accommodate Older Witnesses at Trial?

Natalia R. Angelini Uncategorized Tags: , , 0 Comments

An aging population brings with it more older Canadians involved in the court system.  Some challenges with having older witnesses testify at trial may include:

  • memory impairments (almost 40% of people over age 65),
  • a decline in hearing (47% of people age 60-79),
  • irreversible vision loss (25% of people by age 75),
  • mobility issues (more than 25% of people by age 75), and
  • dementia (at least 90% of people with dementia are over age 65).[1]

Add to this the method in which evidence at trial is elicited – through the adversarial process of examination and cross-examination, with the witness sitting alone, apart and elevated in the courtroom, which conditions make witnesses feel uncomfortable and intimidated – and the result is less accurate testimony.

Some solutions for our older witnesses include various ways to minimize court appearances, including examining witnesses for discovery at their homes, allowing them to attend pre-trial or trial by telephone or videoconference, and allowing hearsay statements made out of court to be admitted at trial. Another very helpful option for the elderly and/or infirm is to avoid delay by taking trial testimony in advance of the trial. In Ontario, Rule 36 of the Rules of Civil Procedure allows the parties to examine a witness before trial (often video-taped), which examination can be used at trial in the place of in-person oral testimony. If the parties don’t agree on the issue, the party that wants to proceed with the Rule 36 examination would need to bring a motion seeking a court order to this effect. When deciding whether or not to allow a Rule 36 examination, the court must take into account various considerations, including:

  • the convenience of the person whom the party seeks to examine;
  • the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;
  • the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;
  • the expense of bringing the person to the trial; and
  • whether the witness ought to give evidence in person at the trial.

Rule 36 examinations certainly seem to be in keeping with the times. With the long-overdue technological strides made in our court system as a result of the COVID-19 pandemic, virtually every litigation step is now being conducted virtually (including examinations, mediations, pre-trials and trials). With this trend expected to continue after the pandemic has ended, I would imagine that we will see fewer disputes over the issue of whether or not a Rule 36 examination should proceed.

For a more comprehensive commentary on the issue of accommodating older witnesses, I refer you to the paper in the footnote below, from which I have taken just a sampling of high points in this blog.

Thanks for reading and have a great day,

Natalia Angelini

[1] Obtained from Helene Love’s paper, Seniors on the stand: accommodating older witnesses in adversarial trials, The Canadian Bar Review (Vol. 97, 2019, No. 2)

15 Oct

Holding the Reins on Dependant Support?

Natalia R. Angelini Uncategorized Tags: , , , 0 Comments

The Succession Law Reform Act permits dependant support claims to be brought by a spouse, sibling, child and parent of a deceased. In order to qualify as a “dependant”, the person must be someone that the deceased (i) was providing support to immediately before death, or (ii) was under a legal obligation to support immediately before death.

Interestingly, the definition of “child” is not limited to minor children or financially dependant children. It is thus open to an independent adult child to whom no financial support was being paid immediately prior to death to apply for dependant support, premised on the argument that the deceased parent has a moral obligation to provide support. While we have seen the development and application of the moral obligation principle in Tataryn v. Tataryn Estate and Cummings v. Cummings, and although some decisions of the bench in British Columbia indicate that it is willing to apply the moral obligation principle in favour of independent adult children, in Ontario moral obligation appears to continue to be treated as but one factor to consider in the context of support claims. The fact remains that there is no legal obligation to provide support to an adult child.

A similar view may persist in the British court, which was recently reported to have disallowed an adult son’s plea for his wealthy parents to continue to financially support him, which litigation was brought after his parents significantly reduced their financial involvement. While in this instance the parents were alive and able to successfully respond to the court proceeding, had they died prior to or during the time when financial support was in the process of being reduced, would the adult son have had more success with such a claim? If his parents died subsequent to support being reduced or eliminated, would their estates still be vulnerable to a dependant support claim on moral grounds?

Although each case is fact-specific, I would not be surprised to see that in circumstances where there is a large estate and no other competing support claims, the court may work harder to striking a balance between fairness and testamentary intention, particularly where the parents are shown to have enabled a lifestyle and arguably created a dependency that they withdrew during adulthood.

Thanks for reading and have a great day,

Natalia Angelini

16 Jan

Do Rule 49 offers still work?

Natalia R. Angelini Litigation, Uncategorized Tags: , , , 0 Comments

With the loser-pays costs model firmly entrenched in civil litigation, and, for some time now, also consistently applied in most estate litigation cases, it behooves counsel to give early and ongoing consideration to putting forward an offer to settle under Rule 49 of the Rules of Civil Procedure with the objective of obtaining a more favourable costs outcome.

In order to get the benefit of the cost consequences under the Rule, such an offer (i) must be made at least seven days before the hearing, (ii) cannot be withdrawn and cannot expire before the commencement of the hearing, (iii) must not be accepted by the opposing side, and (iv) the offeror must meet or beat the offer at the hearing. However, even if this criteria is met, the court has the discretion to depart from the cost presumptions under the Rule.

Taking into account the court’s discretion, and given what feels like the release of more and more decisions where cost awards seem to bear little reflection to the costs incurred or the Rule 49 offers made, I wonder whether making a Rule 49 offer actually provides the expected benefit of a better costs outcome for the offeror.

In reading a recent article on the issue, I am reminded that there is some predictability in place. The authors review some relevant authorities, including Niagara Structural Steel (St. Catharines) Ltd. v. W.D. LaFlamme Ltd. and Barresi v. Jones Lang Lasalle Real Estate Services Inc., two Court of Appeal cases where it was held that the courts of first instance erred in resorting to the exception in Rule 49, and where the Court of Appeal reasoned as follows:

  • the purpose of the Rule is to be an incentive to encourage settlement;
  • a judge’s discretion to depart from the costs presumption under the Rule is not unfettered, and should not be exercised in such a widespread manner so as to render the general rule ineffectual; and
  • a judge should only depart from the Rule “where the interests of justice require a departure”, after giving weight to the policy of the Rule, the importance of predictability and the even application of the Rule.

Thanks for reading and have a great day,

Natalia Angelini

14 Jan

Reminders re: Certificates of Pending Litigation

Natalia R. Angelini Estate Litigation, Litigation Tags: , 0 Comments

In our estate litigation practice, we commonly seek orders permitting registration of a Certificate of Pending Litigation (CPL) against title to property that is, for instance, an estate asset that a client is seeking to preserve until the litigation is concluded.

In order to obtain a CPL, one needs to demonstrate that an interest in land is in question, and in determining whether to order the issuance of a CPL, the following legal principles ought to be considered, as highlighted in Perruzza v Spatone:

  • the threshold in respect of the “interest in land” is “whether there is a triable issue as to such interest, not whether the plaintiff will likely succeed”;
  • the onus is on the party opposing the order for a CPL to demonstrate that there is no triable issue with respect to whether the party seeking the CPL has “a reasonable claim to the interest in the land claimed”; and
  • the governing test is that the Court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL ought to be granted.

We can see from the above that the threshold to obtain a CPL is not high; presumably the rationale being that it is more favourable to have a property in dispute secured during litigation than risk it being dissipated to the prejudice of a litigant.

Once a CPL is obtained it is prudent to assess the circumstances throughout the life of the litigation so that it is discharged at the appropriate time. As noted in Perruzza, factors the court can consider to discharge a CPL include whether the land is unique, whether there is an alternative claim for damages, whether there is or is not a willing purchaser and the harm if the CPL is or is not removed.

If the litigation stagnates, without reminders in place it is possible for the registered CPL to be left unaddressed.  These were the circumstances in Novia v. Saccoia Estate (Trustee of). The CPL had remained on title for more than 20 years and even after the defendant’s death, ultimately forcing the defendant’s executor to obtain an order dismissing the action and discharging the CPL.

Thanks for reading and have a great day,

Natalia Angelini

13 Jan

Five Litigation Lessons

Natalia R. Angelini Litigation, Uncategorized Tags: , , 0 Comments

Five seemingly simple yet essential litigation lessons are so cleverly set out in a recent Advocates Journal article by Gord McGuire that I reproduce them below, with some accompanying insights:

  1. The law is the cart. The facts are the horse.

The take-away: It is suggested that it is better to apply case law after you have persuaded a judge to lean in your client’s favour, as judges are often moved more by their sense of achieving an outcome that is fair and just than by application of the law.

  1. A picture is worth a thousand authorities.

The take-away: I can’t count the number of times I’ve heard a lawyer complain about losing a winning case or beam about winning a losing one. The author reminds us that having a convincing legal argument or supportive case-law on your side may not carry the day if the opposing side creates an image that registers with the judge. To avoid getting bested by your opponent, use physical photos if you can, and, if you can’t, create mental ones.

  1. Thinking on your feet is good. Having already done the thinking in advance is better.

The take-away: Better preparedness equals less chance of being caught off-guard by a judge’s questions. This lesson resonates with me as a great practice tip as well as a great mental health tip, since I gather from this article that I’m not alone in having tortured myself post-hearing by repeatedly running the court scene through my head with the perfectly crafted answer that I had meant to give to the judge.

  1. You and your case are in love. For the judge, it is a first date.

The take-away: Conviction in your case can be persuasive, and it may lead you to expect that a judge will take a similar view. Don’t forget that your perspective is uniquely formed by the level of intimacy you have with the case, and that a judge will give equal consideration to the opposing-side’s position. To temper your expectations, the author suggests that you can try testing the waters by dispassionately discussing your case with colleagues to gauge their reaction, without giving away which side you are on.

  1. Advocacy matters only so much, and that’s a good thing.

The take-away: Take comfort in knowing that even with the most superb lawyering, there is only so much you can do to secure victory for your client. The facts, the law and the judge’s reaction and perspective are what they are. So when a mediocre advocate defeats a superior one, take it as a mark of a justice system that is functioning as it should.

Thanks for reading and have a great day,

Natalia Angelini

14 Nov

An ingenious coping tool for stress?

Natalia R. Angelini In the News Tags: , 0 Comments

No doubt our youth must navigate an increasingly complex world, and so it isn’t any surprise to see a growing focus on mental health issues and novel ways to address them. This is a very serious issue, yet I couldn’t help but chuckle when reading an article discussing a Dutch university’s new and original stress-management tool. Wait for it…lying in a grave!

Just when life’s challenges are getting you down, you ditch your electronic devices (for 30 minutes to 3 hours), lie in a grave, contemplate the alternative and put your problems into perspective. One student is reported to have said the following after her experience:

“When you think about death, you automatically also think about life. That is because you realize that life isn’t endless and that we are all going to die at one point. It makes you think about what do I want to do in life, and what do I think is the most important, what does my heart feel, what does my mind want to do.”

Maybe it’s the yogi in me, but this feels like a new form of mediation, as one author put it “an invitation to listen to yourself”. I would love to see this service available to students, and adults, locally. Getting into nature is cathartic in its own right, and the option of literally getting into the ground (with the added comfort of a pillow and mat) to reflect seems like a very peaceful and relaxing experience. There are lots of other ways we can let nature give us a boost. I dare you – when summer returns, channel your inner child and roll down a grassy hill!

 

Have a great day,

Natalia Angelini

12 Nov

Holograph Wills – A Recent Interpretation Case

Natalia R. Angelini Estate & Trust, Estate Litigation, Estate Planning, Wills Tags: , 0 Comments

In Kirst Estate (Re), the Court of Queen’s Bench of Alberta had before it an interpretation case involving a holograph will of William Kirst (“K”). The will was a short handwritten document that divided the estate equally amongst K’s surviving children, with some qualifying language allowing Whitehorn (“W”), one of K’s children, to live in the family home. W had almost always lived in the home, which was the primary estate asset.

The phrase the Court was tasked with interpreting reads: “Whitehorn can live in the house for awhile, to be determined by Him and his brothers + sisters.”

The sole issue was the interpretation of the words “for awhile”.

The testimony of four of K’s children was considered (although ultimately of little assistance), with two of them believing K’s intention was that W remain in the house indefinitely, and the other two viewing their father’s intention as simply to permit W to stay in the home until he could get his affairs in order. As K discussed his estate with his children separately, each of them had his/her own understanding of K’s intentions. Notably, although K made the will in 1995, none of the kids had previously known about it or discussed its terms with K.

The Court cited and reviewed the following four general principles of interpretation recently set out by the Alberta Court of Appeal to assist in ascertaining K’s intention:

“First, a will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one.

Second, a court must read the entire will, just the same way an adjudicator interpreting a contract or a statute must read the whole contract or statute.

Third, a court must assume that the testator intended the words in the will to have their ordinary meaning in the absence of a compelling reason not to do so.

Fourth, a court may canvas extrinsic evidence to ascertain the testator’s intention.”

The Court concluded that it could determine K’s intention by giving the words in his will their natural and ordinary meaning, and, in so doing, it was satisfied that the intention was to allow W to stay in the home subject to an enforceable condition that he and his siblings agree on how long he can continue to live there. The Court further found that as the siblings could not agree, the condition had not been fulfilled, such that W’s entitlement has ended.

The circumstances in this case are unfortunate, as the siblings had apparently been involved in protracted litigation since K’s death in 2010, including a dispute over the validity of the will. Although holograph wills can be helpful estate planning tools, I wonder if these same contentious circumstances would have developed if K had made his will with effective legal advice.

Thanks for reading,

Natalia Angelini

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/

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

TRY HULL E-STATE PLANNER SOFTWARE

Hull e-State Planner is a comprehensive estate planning software designed to make the estate planning process simple, efficient and client friendly.

Try it here!

CATEGORIES

ARCHIVES

TWITTER WIDGET