Tag: estate law

20 Apr

When There Just Isn’t Enough to Go Around: Abatement and Ademption

Hull & Hull LLP Estate & Trust, Estate Planning Tags: , , , , , , , , , , , 0 Comments

In a perfect situation, a deceased person’s estate would correspond exactly with the gifts as set out in his or her last will and testament. However, it is sometimes the case that the assets of an estate are insufficient to pay all of a testator’s debts, as well as all gifts set out in his or her will, or where the object of a specific bequest no longer exists at the time of the testator’s death.

In the former situation, the principle of abatement would apply to the distribution of the estate to beneficiaries, meaning that the gifts set out in the testator’s will are reduced rateably and in order depending on the type of bequest. If the estate has insufficient assets to pay the testator’s debts, it would be insolvent and the legacies described in the testator’s will would be unable to be paid. If there are assets leftover after payment of debts, but they are not sufficient to fully satisfy all gifts, then some or all of the gifts will abate.

If the testator’s will does not specifically provide for the order in which gifts are to abate, the order of abatement of bequests is as follows:

  1. Residuary personalty.
  2. Residuary real property.
  3. General legacies, including pecuniary bequests from the residue.
  4. Demonstrative legacies, meaning bequests from the proceeds of a specific asset or fund not forming part of the residue.
  5. Specific bequests of personalty.
  6. Specific devises of real property.

The abatement of gifts in each category will occur in equal proportions so that no single beneficiary will be made to bear the full burden of the abatement.

Ademption occurs when a specific legacy in a testator’s will cannot be satisfied due to the lack of existence of the property that was the subject of the bequest. When a specific gift adeems, it fails, and the beneficiary will not receive the gift.

In Ontario, there are a number of statutory provisions that affect the doctrine of ademption, including ss. 20 and 22 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 that permits a will to operate on substituted property, and s. 36 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”) which provides that ademption does not apply to property disposed of by a guardian under the SDA.

Thanks for reading,

Rebecca Rauws

Other blog posts you may enjoy:

08 Nov

Hull on Estates #492 – Legal Reform in Family and Estates Law

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estates, News & Events, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , 0 Comments

This week on Hull on Estates, David Smith and Doreen So discuss legal reform in family and estates law and the contributions of our senior counsel, Roy McMurtry.

Legal reform in family and estates law
“In the 1970’s the biggest human rights concern for the Chief in the context of family law was that; children born outside of marriage didn’t have the same legal rights as children who were born in the context of a marriage.” – Doreen So

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on David Smith.

Click here for more information on Doreen So.

30 Dec

Top Estate, Trust and Capacity Cases of 2015: A Year in Review

Suzana Popovic-Montag Capacity, Estate & Trust, Trustees Tags: , , , , , 0 Comments

As 2015 comes to a close, the usual lists compiling the top songs, movies and books of the year seem to be everywhere. Accordingly, it seemed only appropriate to follow suit with our own list of the top estate, trust and capacity cases of 2015 from across Canada.

#1: Bunn v Gordon, 2015 ONSC 4768

The deterioration of the relationship between Estate Trustee(s) and beneficiaries may necessitate the removal of the Estate Trustee(s). As such, careful consideration to pre-existing relationships and personality conflicts should be given when making an Estate Trustee appointment.

Click here and here to read our previous blog posts on this case.

#2: McConnell v McConnell, 2015 ONSC 2243

By categorizing an RESP as a trust held by a trustee (parent) for the benefit of the beneficiaries (children), the court held that removal of a co-trustee (spouse) may be appropriate in certain circumstances, such as when the co-trustees can no longer cooperate effectively.

Click here to read our previous blog post on this case.

#3: McLaughlin v McLaughlin, 2015 ONSC 3491

The court approved the principles of Smith v Vance in determining what qualifies as a “financial interest” for the purposes of the Rules of Civil Procedure and the Estates Act. The court also affirmed that a financial interest includes an interest derived from intestacy and that being a child of the testator on its own is not enough to pass the threshold of having a financial interest.

Click here to read our previous blog post on this case.

#4: Mroz v Mroz, ONCA 171

Evidence of a testator’s intentions remains key in the rebuttal of the presumption of resulting trust.

Click here to read our previous blog post on this case.

#5: Dueck v Chaplin, 2015 ONSC 4604

The court declined to exercise its discretion to remove the Estate Trustees after they tried to renounce. This was due to the fact that the Estate Trustees had already begun to administer the estate and were viewed as having “intermeddled”. Accordingly, they had a duty to propound the will.

Click here to read our previous blog post on this case.

#6: Moore v Getahun, 2015 ONCA 55

The Court of Appeal overturned the lower court ruling that stated that it is improper for counsel to assist an expert witness in the preparation of his/her expert report.

Click here to read our previous blog post on this case and here to listen to the podcast.

#7: Park v Myong, 2015 ONSC 2287

A look at conflict of laws within an estate law context shows that a determination that the court has jurisdiction over one issue in a case will not necessarily ensure that is also has jurisdiction over another separate issue in the same case.

Click here to read our previous blog post on this case.

#8: Estate of Forbes McTavish, 2015 BCSC 774

Communication between co-Estate Trustees is an important aspect of their fiduciary obligations and avoidance of such can warrant removal.

Click here to read our previous blog post on this case.

#9: Burkhardt v Burkhardt Estate, 2015 ONSC 2688

The court looked at the definition of “common habitual residence” to determine entitlement to a spouse’s estate (with respect to equalization claims). The court found that the “last common habitual residence” referred to under the Family Law Act referred to the place where the spouses recently lived as husband and wife and where they last participated in every day family life together.

Click here to read our previous blog post on this case.

#10: Heston-Cook v Schneider, 2015 ONCA 10

Unsuccessful parties to a claim against an estate that may have lacked appropriate standing can obtain blended costs awards (in certain circumstances). Here, partial indemnity costs were awarded against the unsuccessful beneficiary and the balance was payable from the estate.

Click here to read our previous blog post on this case and click here to listen to the podcast.

#11: Carter v Canada, 2015 SCC 5

Physicians are allowed to assist patients in ending their lives in certain circumstances. The SCC struck down s. 241(b) of the Criminal Code which imposed a legal ban on physician-assisted suicide.

Click here and here to read our previous blog posts on this case and click here to listen to the podcast.

#12: Spence v BMO Trust Company, 2015 ONSC 615

The court held a will to be invalid for public policy concerns. Specifically, the court found the will to be discriminatory as the evidence suggested that the testator had disinherited one daughter for having a mixed-race child.

This case has been appealed but the decision from the Court of Appeal has not yet been issued.

Click here, here, and here to read our previous blog posts on this case and click here to listen to the podcast.

This list is by no means exhaustive; however, it does provide an overview of many of the estate, trust and capacity issues that were considered by the courts over the course of the year.

Thank you for reading and Happy New Year!

Suzana Popovic-Montag

29 Dec

Hull on Estates #447 — McKay Estate v. McKay and Fiduciary Relationships

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

This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the development of fiduciary relationships and the recent Ontario Superior Court of Justice decision of McKay Estate v. McKay.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Jonathon Kappy.

Click here for more information on Nick Esterbauer.

10 Dec

Hull on Estates #444 — Proving a Will in Common Form vs Solemn Form

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

This week on Hull on Estate Jonathon Kappy and Lisa Haseley discuss the differences and implications of proving a will in common form and solemn form.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Jonathon Kappy.

17 Nov

Hull on Estates #441 – Illiquid and Insolvent Estates

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

This week on Hull on Estates Jonathan Kappy and Lisa Haseley discuss Jenny Pho, Dale & Lessmann LLP’s paper Illiquid Estates and Other Solvency Issues presented at Probate Essentials 2015, pertaining to issues faced by an Estate Trustee when administering an illiquid or insolvent estate.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog below.

Click here for more information on Jonathan Kappy.

22 Sep

Hull on Estates #433 – Confidential Replacement Wills and Undue Influence

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

This week on Hull on Estates, David Smith and Josh Eisen discuss an innovative way to protect a testator from undue influence, proposed by author John E. S. Poyser in his new book, Capacity and Undue Influence.

Should you have any questions please email us at webmaster@hullandhull.com or leave a comment below.

Click here for more information on David Smith.

Click here for more information on Josh Eisen.

08 Sep

Hull on Estates #432 – Bankruptcy and estate planning

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

This week on Hull on Estates, Jonathon Kappy and Doreen So discuss a Court of Appeal case related to bankruptcy and its overlapping concepts related to estate planning.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog below.

Click here for more information on Jonathon Kappy.

Click here for more information on Doreen So.

01 Sep

Hull on Estates # 431 – Delirium and Dementia

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

This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss a recent paper by Wendy Griesdorf, which highlights the differences between delirium and dementia, and the relevance of this distinction within the context of estate and guardianship proceedings.

Should you have any questions, please email us at webmaster@hullandhull.com, or leave a comment on our blog below.

Click here for more information on Natalia Angelini.

Click here for more information on Nick Esterbauer.

10 Aug

Hull on Estates #428 – Fertility Law in the Context of Estates

Hull & Hull LLP Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED Tags: , , , , 0 Comments

Today on Hull on Estates, Moira Visoiu and Doreen So discuss estate law issues that may arise through the use of artificial reproductive technologies and Ian Hull’s paper, “Fertility Law in the Context of Estates”.

Congratulations again to Sara Cohen for being recognized as one of the Top 25 Most Influential by Canadian Lawyer in respect of her work in Canadian fertility law.

Should you have any questions, please email us at webmaster@hullandhull.com, or leave a comment on our blog below.

Click here for more information on Moira Visoiu.

Click here for more information on Doreen So.

 

SUBSCRIBE TO OUR BLOG

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

CONNECT WITH US

CATEGORIES

ARCHIVES

TWITTER WIDGET