Tag: Estate Litigation
For a will in Ontario to be valid, it must meet the statutory requirements for due execution as outlined in section 4(1) of the Succession Law Reform Act (the “SLRA”). In some cases, however, determining whether these requirements have been met is not always clear-cut. Bayford v. Boese, 2019 ONSC 5663 provides such an example.
In this case, the testator, Bruce Boese (“Bruce”), died in June of 2015. Bruce was the sole owner of a farm he inherited from his parents. He never married and did not have any children. For the past two decades prior to Bruce’s death, his friend, Brenda Bayford (“Brenda”), assisted him with the operation of the farm.
Throughout his lifetime, Bruce executed two wills: one in 1992 and another in 2013. Under the 1992 will, Bruce named his parents as his sole beneficiaries. However, since both of Bruce’s parents had pre-deceased him, his estate would pass on an intestacy to his siblings, with Brian and Rhonda each inheriting 50%. Under the 2013 will, the farm property was to be transferred to Brenda, with the residue being equally divided amongst four children of Bruce’s two siblings. Interestingly, the 2013 will had the word “DRAFT” stamped on every page. Also, there were two versions of the 2013 will: “Version 1” and “Version 2”. Version 1 contained Bruce’s signature but did not contain the signatures of any witnesses. Version 2 contained Bruce’s signatures and the signature of two witnesses, Sophie Gordon (“Sophie”) and Colleen Desarmia (“Colleen”).
After Bruce’s death, Brenda found Version 1 of the will. She brought it to the office of Bruce’s lawyer as she thought that the fully executed version of the will would be there. It was not. Shortly after, Colleen informed Brenda of the existence of Version 2. Upon hearing this, Brenda did a further search and found Version 2.
Brian asserted that the 2013 will did not comply with section 4(1) of the SLRA. His theory was that upon finding Version 1 of the will, Brenda colluded with the two witnesses to procure the 2013 will. In the alternative, Brian asserted that Bruce’s signature was forged on the 2013 will which the two witnesses signed.
Although Brian called an expert to give evidence with respect to Bruce’s signature on the wills, Justice Corthorn did not find the expert’s evidence to be helpful to Brian, nor did she find that it made the two witnesses less credible.
At trial, there were discrepancies between the evidence of the two witnesses with respect to the specific mechanics of Bruce signing the will and the witnessing of his signature. For example, Colleen testified that she believed that both she and Sophie remained standing while Bruce was seated at the kitchen table when he signed the 2013 Will. Sophie’s evidence was that she believed she was the only person standing and that both Bruce and Colleen were seated. Justice Corthorn noted, however, that “these inconsistencies [were] in keeping with the frailty of human memory, including […] the passage of time” and that they did not give her a reason to be concerned with the credibility of either witness.
Furthermore, based on the witnesses’ respective education and work experience, Justice Corthorn drew an inference that each of them had sufficient experience in completing paperwork to know that a witness to a document signs after the document is signed by the principal signatory.
Taking this into consideration, Justice Corthorn concluded that Bruce’s 2013 will was executed in accordance with s. 4(1) of the SLRA and that it was therefore valid.
While Bayford v Boese provides many noteworthy take-aways, perhaps the main one is the importance of ensuring that a will is properly executed, and that it is stored in a safe and easily accessible place that the testator’s lawyer and estate trustee(s) are aware of. Had this happened, the case could have been avoided altogether.
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Ian Hull and Celine Dookie
The song “Why Do Fools Fall in Love”, recorded in 1956, became a number 1 hit, and established the career of Frankie Lymon and the Teenagers. The song has been covered by many, including the Beach Boys and, most notably, Diana Ross.
Frankie Lymon died on February 27, 1968 at the age of 25, as a result of a heroin overdose. In his wake, he left a series of relationships. Years after his death, litigation ensued.
After Diana Ross’s cover version of the song reached the charts in 1981, three women, each claiming to be Lymon’s spouse and lawful heir, sought payment of royalties arising from the song.
The first, Elizabeth Waters, married Lymon in 1964. Together, they had a child who died shortly after birth. Waters, however, was not divorced from her first husband at the time of her marriage to Lymon.
The second woman, Zola Taylor, a singer with the Platters, claimed to have married Lymon in Mexico, 1965. However, no documentation of the marriage could be found.
The third, Emira Eagle, married Lymon in June 1967.
The question of who was Lymon’s proper heir went to trial. According to a Washington Post article, at first instance, the court held that first wife Waters was the proper heir. Although Waters was not yet divorced when she married Lymon, their relationship “satisfied the requirements of a common law marriage in the State of Pennsylvania.” Although Waters was not yet divorced when she married Lymon, the marriage became valid when the divorce from her first husband became final.
On appeal, the court held that the marriage between Waters and Lymon was not valid. The marriage to Eagle was valid and therefore she was entitled to the estate.
The story does not end there. Issues arose as to what royalties Lymon’s estate was entitled to. This involved litigation with Lymon’s former manager. In an article in Ebony Magazine, it is reported that Lymon’s estate was worth more than $1m.
In the Ebony interview, Eagle says that she knows why fools fall in love: “Love doesn’t hurt. Love is supposed to be tender, beautiful and caring. Frankie treated me like his queen.” When asked, Eagle said she would do it all again, “but I would insist on a will.”
Frankie’s life and posthumous issues are portrayed in the movie “Why Do Fools Fall in Love”, starring Vivica Fox as wife #1, Halle Berry as wife #2, Lela Rochon as wife #3 and Little Richard as himself.
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In a recent Ontario Superior Court of Justice decision, the Court considered certain extrinsic circumstances surrounding the making of the Will, as well as the reading of the Will as a whole, in reaching a decision regarding its interpretation.
In Love v Wheeler 2019 ONSC 4427, a spouse of a deceased beneficiary sought a declaration that a beneficiary’s estate was entitled under a testator’s Will to an undivided half-interest in property and that the other beneficiary wrongfully appropriated it.
Frances Irene Wheeler died in 2012. She bequeathed a parcel of land to her two sons, Harold William Wheeler and Martin Douglas Wheeler. Her Will stated that this property was to go to Harold and Martin “jointly or the survivor of them”.
The Court grappled with the question of whether Frances meant to leave the property to Harold and Martin as joint tenants or as tenants in common. Certainly, in a joint tenancy, there would be a significant benefit to the survivor of the two brothers, as the other half interest would pass on a right of survivorship, rather than form a part of the deceased brother’s estate.
This is exactly what happened in this case. Martin died in 2015 and in April, 2017, Harold had the title to the property transferred into his own name, on the argument that it was owned by him and Martin, as joint tenants.
Deborah Love, Martin’s common-law spouse of 16 years, commenced an application before the Court, as against Harold. One of the grounds for Deborah’s position was that the extrinsic evidence surrounding the making of the Will, including a prior Will of February, 2009, supports a finding that Frances intended her sons to inherit the property as tenants in common.
The Court’s Decision
In reaching its decision, the Court emphasized its role in giving effect to the testamentary intention of the testator, as expressed in a Will. Justice Chozik gave consideration to the “armchair” rule, which requires a judge to place him or herself in the position of the testator at the time when the last Will was made, and to consider and weigh the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of her property.
Justice Chozik found that Frances intended to leave the property in question to her sons, as tenants in common. This intention was held to be clear from the Will when it is read as a whole, taking into account some of the extrinsic circumstances surrounding the making of the Will.
This decision certainly emphasizes how important it is that the Will clearly stipulates the terms of each bequest, particularly when it comes to large assets, such as real property.
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To most, it may seem obvious that an order from the court is not merely a recommendation. The terms of a court order must be followed. Disobeying the terms of an order may result in a finding that a litigant is in contempt. This was a lesson the defendant in Jensen v. Jensen had to learn the hard way.
In Jensen v. Jensen, Sterling Jensen was married to Betty Jensen. It was a second marriage for both of them and they both had children from prior marriages. Sterling passed away in 2014. Prior to his passing, Sterling appointed his son, Randall, as his Attorney for financial and personal care decisions and his other son, Murchie, as his Executor. Following Sterling’s death, Betty commenced an action against Sterling’s estate and his sons, claiming various forms of relief, including ownership of the matrimonial home.
Betty passed away and the trial was adjourned following her death. Betty’s heirs obtained an order to continue the action on behalf of her estate. A motion requesting an order to continue was heard on November 23, 2017. Following the hearing, Justice Petrie issued an order which provided the following, among other terms:
Until judgement is rendered in this action no further assets of the Defendant Estate shall be transferred or disposed of except as necessary to pay the property taxes and other such expenses or as required by law or further order from this Court.
Despite Justice Petrie’s order, in February 2018, Murchie wrote cheques to the beneficiaries of Sterling’s estate amounting to $7,000. In May 2018, land was transferred from Sterling’s estate to one of Sterling’s other sons who was also a beneficiary in the estate. In July 2019, the plaintiffs filed a motion seeking an order to declare the defendant in contempt of court due to his disobedience in following Justice Petrie’s order. The plaintiffs also wanted the defendant to pay back to the estate the amounts that he hastily distributed.
The defendant stated that although Justice Petrie’s order was not respected, he did not believe that he was violating the “spirit of the order”.
In her Judgment, Justice DeWare noted that it was clear that the defendant did not follow Justice Petrie’s order and in not doing so, he was in contempt of court. Justice DeWare went on to state that if the executor felt it was necessary to issue partial payments to the beneficiaries, he should have obtained a further court order which allowed him to do so. Justice DeWare emphasized that court orders are not suggestions and that they must be followed. Pursuant to Rule 76.06 of the New Brunswick Rules of Court, Justice DeWare ordered the defendant to return $35,000 to the estate and pay $1,000 in costs to the plaintiffs.
In summary, Jensen v Jensen provides one simple, yet clear, instruction: always follow court orders. The failure to do so can carry a host of potential detriments. Although Jensen v. Jensen is a New Brunswick case, it can be applied in Ontario as per Rule 60.11(5) of the Rules of Civil Procedure. It states that if the court finds a party in contempt, the judge may order that the litigant be imprisoned, pay a fine, refrain from doing an act, pay costs or comply with any other order that the judge considers necessary. As this provision is similar to the provision in New Brunswick’s Rules of Court, it is likely that had the case been heard in Ontario, the outcome would have been comparable.
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Ian Hull and Celine Dookie
In the recent case of Wilkinson v. The Estate of Linda Robinson, 2020 ONSC 91, the court rejected an argument that the 2-year limitation period set out in the Trustee Act applied to a claim against an estate for an interest in a real property on the basis of constructive trust. The court held that the 10-year limitation period set out in the Real Property Limitations Act applied.
In the case, the deceased died on July 2, 2015. The deceased died owning a real property that she and her common-law spouse lived in. In her will, the deceased allowed her spouse to live in the house for 2 years. The surviving spouse brought a claim that he was entitled to an equal interest in the house.
However, the claim was not commenced until September 25, 2017. The estate seized upon this delay and brought a motion to have the application dismissed on the basis of the passage of the 2-year limitation period set out in the Trustee Act.
The court dismissed this argument. It held that the appropriate limitation period was not the one set out in the Trustee Act, but the one set out in the Real Property Limitations Act.
The court quoted extensively from the Court of Appeal decision of McConnell v. Huxtable, 2014 ONCA 86. There, the court determined that a claim for a constructive trust in a common law relationship based on unjust enrichment was an action for recovery of land and therefore was governed by the Real Property Limitations Act. The applicable limitation period was therefore 10 years.
In a similar case, Rolston v. Rolston, 2016 ONSC 2937, the court refused to apply the 2-year limitation period to a claim for a remedial constructive trust brought 7 years after the date of death of the deceased. Again, the action was allowed to continue under the 10-year limitation period set out in the Real Property Limitations Act.
Ideally, any claim involving an estate should be brought within 2 years of the date of death of the deceased so as to avoid any limitation period issue. However, where this has not been done, it may still be possible to maintain a claim under certain circumstances.
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In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area. As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?
Our regular readers will already be well aware that capacity is task, time, and situation specific.
Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment. Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.
The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow. While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different. Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.
Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy. While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.
Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.
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In wills, trusts, and estates litigation, much hinges upon expert evidence. In a will challenge that is based upon alleged testamentary incapacity, both the objector and propounder of the will would be prudent to enlist a capacity assessor. A party suspicious of undue influence may wish to consult a physician, a police officer, or some other party who could be privy to abuse. In a contested passing of accounts, an expert investor can speak to the soundness of a trustee’s investments.
Though in theory expert evidence should clarify the points of contention, in practice it can sometimes render matters murkier and more uncertain. For instance, what happens if two equally distinguished handwriting experts draw opposite conclusions? What if a coroner’s findings contradict the preponderance of other evidence?
Another concern is experts’ impartiality, as evidenced by Wilton v. Koestlmaier, wherein one party unsuccessfully charged an expert witness with advocating for the other side. Courts have long been apprehensive that some experts may (perhaps unwittingly) be kinder with the parties with whom they interact and from whom they collect their bills. In 1873, Sir George Jessel, M.R., wrote:
“There is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them.”
One possible fix for this source of apprehension is to have both parties deal with the same expert. At the very least, litigators should not employ the same expert to too great an extent, which might appear as a “red flag”.
Courts have also looked into the timing for delivery of expert reports. The Rules of Civil Procedure prescribe that expert reports are served no less than 90 days before the pre-trial conference (or 60 days for responding parties’ reports). Oftentimes, however, parties should exchange their reports well before these deadlines, for once parties receive these reports, they have a much better idea of the relative strength of their positions, which may steer them towards settlement. In Ismail v. Ismail, Grace J. spoke to this:
“How can the parties’ lawyers advise their clients concerning settlement without knowing their case and the one they must meet? How can the parties make informed decisions?”
Too many experts can increase costs exponentially (especially if the experts are famous or from faraway places), but too few experts could lead to a scantiness of evidence. As a nice medium, the Australians have come up with the practice of “hot tubbing” experts—which, despite its fun name, does not involve splashing, shouting, or the unusual combination of horn-rimmed spectacles with bathing suits. Rather, “hot tubbing” refers to having a panel of experts questioned together, which can allow for an identification of the points of agreement and disagreement and more lively discussion.
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Suzana Popovic-Montag and Devin McMurtry
In the recent decision of Gabourie v Gabourie, 2019 ONSC 6282, the court considered a motion for (among other things) interim support by the deceased’s separated spouse.
The applicant wife had separated from her spouse (now deceased) approximately two years prior to his death in March 2018. At the time of the deceased’s death, he and the applicant had been in the process of negotiating the terms of their separation and divorce. They had already entered into an interim separation agreement, which dealt with the proceeds from the sale of their matrimonial home. After the deceased’s death, the applicant and the respondent (who was the deceased’s sister, estate trustee, and sole beneficiary) were able to agree on the issue of equalization of net family property, and a payment was made to the applicant. The issue of spousal/dependant’s support remained outstanding.
The applicant sought a lump sum interim support payment of $50,000.00. Ultimately, the court awarded the applicant interim support of $30,000.00.
Providing Support or Under a Legal Obligation to Provide Support
The fact that the spouses had been separated at the time of the deceased’s death was considered as part of the court’s determination of whether the applicant was a “dependant” (specifically as to whether the deceased was providing support to her, or was under a legal obligation to provide support to her, immediately before his death) and whether the deceased made adequate provision for the applicant’s support.
The court found that there was no evidence that the Deceased had been actually providing support to the applicant prior to his death. They had been separated for two years; in that time the deceased had several health complications and lost his job. He was not supporting the applicant, nor was the applicant relying on him for support. However, spousal support remained an issue to be resolved as part of the separation between the deceased and the applicant. The court stated that there was no evidence that the applicant had waived her right to spousal support, and that, as a married spouse, the deceased was under a legal obligation to support the applicant.
Amount of Interim Support
In arriving at the amount of interim support awarded to the applicant, the court considered the financial circumstances of the deceased’s estate, and of the applicant. Based on preliminary disclosure from the respondent, the Deceased’s estate had a value of approximately $650,000.00, as well as an insurance benefit of $75,000.00. The applicant’s net worth was around $220,000.00, and she earned only a modest part-time income. The applicant also had a significant amount of debt relative to her assets, which the applicant submitted she was required to incur as she was not receiving spousal support and was unable to meet her expenses.
However, the court was mindful of the amount of support sought relative to the value of the estate. The applicant sought $50,000.00, stating that this amount was sought for legal fees that she had incurred in pursuing her dependant’s support claim.
The court was disinclined to award the applicant the full amount sought given the stage of the proceeding, and that it was not yet known whether the applicant would succeed on her application, stating that it was nearly seven percent of the value of the deceased’s estate.
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Recently, the Advance Care Planning in Canada initiative, led by the Canadian Hospice Palliative Care Association, released a new resource to assist with advance care planning and choosing a substitute decision maker.
The “Speak Up” initiative includes two complementary resources.
One resource is the “Living Well, Planning Well” legal toolkit. The development of this toolkit was funded by Health Canada. The legal toolkit was designed to be used by lawyers and their clients, to encourage conversations and reflections about clients’ wishes for advance care planning, and putting appropriate arrangements in place.
The other resource is a public toolkit. It provides plain language information regarding the laws and processes with respect to advance care planning and substitute decision-making throughout Canada. This is helpful as the laws can vary between the provinces and territories.
It is very important to consider advance care planning, and to implement plans as early as possible. In particular, everyone should consider executing a power of attorney, to ensure that they are able to select the person responsible for making decisions on their behalf when they are no longer capable. Without a power of attorney, in Ontario, the ultimate decision as to who will make decisions on an incapable person’s behalf (other than those captured by the Health Care Consent Act, 1996), is left to the court. The court takes such matters very seriously, but most people prefer that the choice of substitute decision maker be their own.
Something else to contemplate is speaking with your family and friends, especially with your named attorney, regarding your wishes. As we enter the holiday season, and plan gatherings with our friends and family, consider taking this opportunity to have a conversation in this regard.
You can review Speak Up’s post about the release of their toolkit here.
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One way that dispositions such as a gift during one’s lifetime, or a Will, may be challenged is on the basis of undue influence. However, allegations of undue influence are often difficult to prove. Additionally, due to the nature of these types of allegations, which often call into question the character of the alleged influencer, they are taken seriously by the court. As a result, parties should be cautious in alleging undue influence, and should be virtually certain that they will be able to back up their claims.
A recent example of this was in the costs decision of Nimchick v Nimchick, 2019 ONSC 6653. A mother and daughter had claimed that their son/brother (“B”) had devised a plan to financially exploit his mother for the benefit of himself, his spouse, and his son, (“J”). The circumstances leading to this allegation involved the mother adding J’s name to a bank account belonging to the mother, for the purpose of paying for J’s student loans, with any excess going to B. The trial judge dismissed the mother and daughter’s claim, finding that the mother intended to gift the money to B and J, and that B had not exerted undue influence over his mother.
The defendants, who were wholly successful, sought their substantial indemnity costs, in the amount of approximately $147,000.00. The court noted that the defendants’ partial indemnity costs of the action were approximately $100,000.00.
In making its determination as to costs, the court considered the circumstances in which elevated costs are warranted, including where the unsuccessful party has engaged in reprehensible, scandalous, or outrageous behaviour that is worthy of sanction. The court found that the mother and daughter’s behaviour had been of this nature. This conclusion seemed to have largely been based on the court’s finding that the mother and daughter advanced baseless allegations of wrongdoing and failed to prove their claims of civil fraud and deceit. Overall, the court preferred B’s evidence to the evidence from the mother and daughter.
The court ultimately awarded costs to the defendants in the amount of $100,000.00. This amounted to the defendants’ partial indemnity costs, according to a note included in the decision. Accordingly, it does not appear that the award against the plaintiffs was necessarily on an elevated scale. The costs awarded were, however, $15,000.00 more than the amount submitted by the plaintiffs as being appropriate.
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