Tag: estate law

25 Feb

Hull on Estates #589 – “Cottage Planning”?

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Show Notes, Uncategorized, Wills Tags: , , , , , , , , , 0 Comments

In today’s podcast, Stuart Clark and Doreen So discuss the Ontario Court of Appeal’s decision in Donaldson v. Braybrook, 2020 ONCA 66, and what to consider when the ownership of a family cottage was changed to include the children.

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09 Jan

Knives Out

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

This past weekend I had the great pleasure of seeing the movie Knives Out by Rian Johnson. For those of you who have not yet seen it I would highly recommend it, especially for those interested in estate law. Although I will try my best to avoid any significant spoilers for those who have not yet seen it, if you don’t want to know anything about the movie before seeing it you should stop reading this blog now.

The plot of Knives Out offers some interesting considerations for those interested in estate law, as it centers around the possible murder of the patriarch of an affluent family, with the alleged motive for many of those accused being that he was going to cut them off and write them out of his Will. While I was watching the movie I couldn’t help but analyze the cases of some of those accused, and whether there were estate law related options that would have been available to them that would not require them to commit murder (I promise that I am fun at parties and that this job has not ruined me).

Knives Out gets into a surprising amount of detail regarding certain estate law concepts, discussing such concepts as “undue influence” in relation to those who would have benefited from the new Will, as well as the “slayer rule” which would result in any individual who was involved in the murder not being entitled to receive a benefit from the estate for public policy reasons. The movie also gets into the concept of “testamentary capacity“, and whether the deceased would have had the capacity to draft the new Will which would have cut the various individuals off.

While watching the movie the one thing that kept running through my mind was that most of the accused family members would appear to have fairly strong arguments that they were dependants of the deceased even if they were cut out of his Will. The movie makes it fairly clear that the deceased was financially supporting a majority of his family members, with his threats to cut them off financially forming the foundation of the motivation for why they may or may not have killed him.

If the deceased had indeed cut these family members out of his Will, and this matter took place in Ontario, there would appear to be a fairly strong argument that those family members that were cut out of the Will were dependants of the deceased under Part V of the Succession Law Reform Act, insofar as the deceased was providing support to them immediately prior to his death and he did not make adequate provision for them in his Will. If these family members were found to be dependants of the deceased, the court could make an order providing for their support from the deceased’s estate regardless of whether they were left anything in his Will. Although I will concede that a long and drawn out court case where various family members assert they are dependants of the deceased is probably a less interesting film than an Agatha Christie style murder-mystery, if Knives Out were real life it is unlikely that many of the family members would ultimately receive nothing from his estate (assuming, of course, they were not involved in his death).

Thank you for reading.

Stuart Clark

P.S. Rian Johnson’s The Last Jedi was better than The Rise of Skywalker. I will die on that hill. Knives Out also features a great scene where Frank Oz (a.k.a. Yoda) plays the family estate lawyer.

06 Dec

B.C. Court Admits Computer File to Probate

Paul Emile Trudelle Estate Litigation, Wills Tags: , , 0 Comments

In a decision out of the Supreme Court of British Columbia, a computer file prepared by the deceased was accepted as a will and admitted to probate. Applying the curative provisions of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), which came into force on March 31, 2014, the court was able to conclude that the computer record represented the deceased’s full and final testamentary intentions.

In Hubschi Estate (Re), 2019 BCSC 2040 (CanLII), the deceased died after a short illness. No formal will was found. However, his family was able to locate a Word document on his computer labelled “Budget for 2017”. In that computer file, there was the following statement: “Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg and Annette or Trevor as executor.”

By way of family background, the deceased was given up by his birth mother at birth to Children’s Aid. At age 3, the deceased was placed in a foster home with the Stacks. He grew up in the Stack house, and was extremely close to his foster parents and 5 foster siblings. He was treated by the immediate and extended Stack family as a member of the family. Upon his foster mother’s death, her estate was divided into 6 shares, with one share passing to the deceased.

On the other hand, if the document was not found to be a will, the deceased’s estate would pass on an intestacy, and would pass to his birth mother’s sister, with whom the deceased had no contact whatsoever.

The court reviewed a number of decisions applying WESA. The court observed that the purpose of the curative provisions in WESA was to avoid the injustice of a deceased’s testamentary intentions being defeated for no good reason other than strict non-compliance with execution and attestation formalities.

In order to obtain probate of a non-compliant document, the propounder must demonstrate (1) that the testamentary document is authentic, and (2) that the testamentary document contains the full, final and fixed intention of the will-maker. The court found that both of these requirements were met in the Hubschi case.

Previously, I blogged on an Australian case where an unsent text message was admitted to probate under similar legislation. Read about it here. This decision was referred to by the court in Hubschi.

For better or for worse, Ontario legislation does not allow for substantial compliance with the formalities of will execution, and strict compliance is required. While this may lead to greater certainty, it also means that the testamentary intentions of a will-maker are often disregarded where there is not strict compliance with the formal requirements of execution.

 

Have a great weekend.

Paul Trudelle

22 Nov

Estates as Landlords, and Ontario’s Cannabis Control Act

Paul Emile Trudelle Estate & Trust, Estate Planning, Ethical Issues, Executors and Trustees, In the News, Trustees Tags: , , , 0 Comments

Acting as an estate trustee can be complicated. Complications are multiplied where the estate includes property that is or has been used in a manner contrary to the Cannabis Control Act.

Under the Cannabis Control Act, S.O. 2017, Chapter 26, as amended, various offences are created involving the production, sale or other distribution of cannabis. Vis-à-vis landlords, section 13 of the Act makes it an offence to “knowingly permit a premise of which he or she is a landlord to be used in relation to activity prohibited by section 6”. Section 6 provides that no person shall sell cannabis, other than an authorized cannabis retailer.

The Act provides for penalties for landlords of at least $10,000 and not more than $250,000 or imprisonment for a term of not more than two years less a day, or both. Fines are subject to an additional 25% Victim Fine Surcharge.

Additionally, the court may, upon conviction, order that a premise be closed to any use for a period not exceeding two years. Prior to conviction, the police may cause the premises to be closed immediately. The premises are to be closed until the final disposition of the charge, subject to an order of the court lifting the closure.

A defense to a charge against a landlord under the Act is the fact that the landlord took reasonable measures to prevent the prohibited activity.

Additionally, forfeiture could be sought by the Crown under the Civil Remedies Act.

An estate trustee holding real property should take steps to ensure that he or she knows what is happening at the property, and to ensure that the property is not being used for illegal activity. In addition, the estate trustee should document the steps that are taken to prevent illegal activity. Leases should be reviewed in order to ensure that they prohibit illegal activity.

For further information, see “The Ontario Cannabis Control Act and Implications for Commercial Landlords” by David Reiter and Brian Chung.

For a blog on Cannabis and Estate Law, see my prior blog, here.

Have a great weekend.

Paul Trudelle

05 Nov

Hull on Estates #583 – Oppression Remedies

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Podcasts, Show Notes, TOPICS, Uncategorized Tags: , , , , , , 0 Comments

This week on Hull on Estates, Noah Weisberg and Doreen So discuss a recent decision on oppression remedies in Corber v. Henry and how corporate issues may arise in estate matters.

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08 Oct

Hull on Estates #581 – Minimal Evidentiary Threshold in Will Challenges

76admin Estate & Trust, Estate Planning, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, Wills Tags: , , , , 0 Comments

On today’s podcast, Paul Trudelle and Rebecca Rauws discuss the recent decision of Naismith v Clarke, 2019 ONSC 5280, and the minimal evidentiary threshold test for will challenges.

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10 Sep

Hull on Estates #580 – Elder Law Issues

76admin Elder Law, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts Tags: , , , 0 Comments

On today’s podcast, Natalia Angelini and Rebecca Rauws discuss elder law issues, including the increasing prevalence of such issues in our practice, the different viewpoints on damages, and the need for more case law in this area.

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27 Aug

Hull on Estates #579 – Webb v Belway: dependant support and misbehaving spouses

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, TOPICS, Uncategorized, Wills Tags: , , , , 0 Comments

In today’s podcast, Noah Weisberg and Sydney Osmar discuss Webb v Belway, 2019 ONSC 4602, a recent case from the Ontario Superior Court of Justice, where the court had to consider whether a common law spouse’s conduct towards the end of the deceased’s life, which included misappropriating funds as attorney for property, should be taken into consideration in determining whether she is entitled to support.

If you would like to read more about the case, see Natalia Angelini’s recent blog here.

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13 Aug

Hull on Estates #578 – Grewal v Litt: The Issue of Testamentary Freedom and Potential Discrimination

76admin Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, Uncategorized Tags: , , , 0 Comments

In today’s podcast, Jonathon Kappy and Sayuri Kagami discuss Grewal v Litt, 2019 BCSC 1154, a recent case out of BC where 4 sisters sought to have the court vary their parents wills that left almost 96% of the parents’ estates to the applicants’ 2 brothers. The applicants claimed that the parents failed to make adequate provision for their proper maintenance and support as a result of cultural discrimination that favoured sons over daughters.

If you’d like to read more about the case, see Garrett Horrock’s recent blog here.

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04 Jun

Hull on Estates #573 – When is a Certificate of Pending Litigation Appropriate?

76admin Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , 0 Comments

This week on Hull on Estates, Jonathon Kappy and Rebecca Rauws discuss the recent decision of Sach v Viola, 2018 CarswellOnt 1824, and under what circumstances a certificate of pending litigation is appropriate.

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