Tag: Estate Litigation
People don’t seem to have as much fun with their wills these days: not as much as they used to.
Take Charles Vance Millar, who died on October 31, 1926. Charles, a lawyer, left a Will in which he gave a share in the Ontario Jockey Club to opponents of gambling, and one to a competitor of the Ontario Jockey Club.
In another provision, Charles left shares of the O’Keefe Brewery Company to each Protestant minister and to each Orange Lodge in Ontario: staunch champions of the temperance movement.
In another provision, he left a life interest in a vacation home to three friends who deeply disliked each other.
In yet another provision, he left the residue of his estate to the woman “who has … given birth in Toronto to the greatest number of children” at the end of ten years from his death. This last clause set off “The Great Stork Derby” in Toronto. Four women shared the prize, having nine children each. (It is not known how many were left out of the money with only eight. A few disappointed contestants were also kept out of the chips as some of their children were illegitimate, and not considered to fall within the definition of “children”.)
By his own admission, Charles’ Will was unusual. The Will opens with the clause:
“This Will is necessarily uncommon and capricious because I have no dependents or near relations and no duty rests upon me to leave any property at my death and what I do leave is proof of my folly in gathering and retaining more than I required in my lifetime.”
Millar’s will set off significant litigation, with proceedings arising in relation to most of the clauses.
In a recent decision out of Québec, Broodney v. Herzog  Q.J. No. 14933, testamentary intent trumped the literal wording of a Will.
The testator had been involved in a loving relationship with Harry Broodney. They had lived together for twelve years. In a 1995 Will, the testator left Harry $25,000.00. In a 1998 Codicil, the gift was increased to $35,000.00, payable in monthly instalments of $600.00. In 1999, the testator executed a further Codicil, increasing the monthly payments to $1,000.00 but not changing the capital amount of the gift. Both the 1995 Will and the 1998 Codicil stated that the gift to Harry would lapse and be null and void, if he and the testator were “not living together” at the time of the latter’s death.
The issue for the Court of Québec was the meaning of the phrase “not living together”. At the time of the testator’s death, she had been living in a nursing home due to her deteriorating health. Her family consequently claimed that Harry was not entitled to the $35,000.00 gift.
The Court focused on the testator’s intentions. Her intent to benefit Harry was clear and uncontested. The Court held that the testator intended the phrase “not living together” to mean a “break up” with Harry. The evidence was clear that their loving relationship did not end when the testator involuntarily left Harry to reside in the nursing home. The evidence was also clear that the testator’s family was aware of the loving relationship. For the Court, the inability to physically live together could not be a reason for disinheriting Harry.
Not surprisingly, Harry asked for and received punitive damages as a result of the family’s refusal to honour the testator’s last wishes. The Court deemed the family’s refusal to be malicious and reckless.
The litigation could have been avoided by better wording in the Will. Drafting issues aside, the case is a good illustration of a Court employing common sense and testamentary intent to avoid an unjust result.
Have a great day!
Section 72(1) of Ontario’s Succession Law Reform Act allows a court to deem various assets that may normally fall outside of a deceased’s estate, to be part of the estate for the purposes of satisfying a dependant support claim. This usually includes “any amount payable under a policy of insurance effected on the life of the deceased and owned by him or her”. However, as demonstrated in Madore-Ogilvie (Litigation Guardian of) v. Ogilvie Estate  E.G. No. 4654 (Div. Ct.), this provision will not normally capture insurance policies owned jointly by the deceased and a third party.
In Ogilvie Estate, the deceased was the father of six children (three of them minors) by five different women. Dependant support claims were made on behalf of two of the minor children. It was agreed that the deceased had failed to provide adequately for his minor children.
The issue before the court was whether a joint life insurance policy, issued to both the deceased and his spouse, could be included as part of the deceased’s estate under section 72(1) of the SLRA. The deceased and his spouse were both the owners and beneficiaries of the policy, which provided that the survivor of the two would receive the face amount of the policy on the death of the other. It was undisputed that the spouse had made the majority of the payments under the policy.
The applications judge held that the policy could be included as part of the estate. On appeal, a majority of the Divisional Court reversed this decision. The majority held that a jointly owned policy cannot be included as part of an estate merely because the deceased is one of the owners of the policy. The Court recognized that s. 72 of the SLRA was designed to counter the intentional depletion of an estate at the expense of dependants. However, there are transactions that “would be considered the normal personal commerce of an individual” and not necessarily undertaken to disenfranchise a dependant. In the case at hand, the majority ultimately decided that the contractual rights of the spouse to the joint policy trumped the needs of the deceased’s dependants.
Have a great day!
Read the transcribed copy of "The Rectification of a Will"
During Hull on Estates Episode #50, Sean Graham and Paul Trudelle discuss the rectification of an erroneous Will.
Sean and Paul also cover the importance of detailed documentation such as Solicitor’s notes and prior Wills, as well as Intestacy and Knowledge and Approval of the Will.
For relevant case law on rectification, please see:
- Re Black (1982), 37 O.R. (2d) 219, 38 O.R. (2d) 468 (Ont. H.C.), Tab 11.
- Re Sherin (1985), 18 E.T.R. 177 (Ont. H.C.J.), Tab 12
- Re Morris,  1 All E.R. 1057 (P.D.), Tab 6.
- Barylak v. Figol (1995), 9 E.T.R. (2d) 305 (O.C.G.D.) Tab 8
In Ontario, the Divisional Court (by amending legislation) now has jurisdiction to hear an appeal made from a final judgment of the Ontario Superior Court of Justice for an amount of not more than $50,000 (previously $25,000), exclusive of costs. Any award over that amount is appealed to the Court of Appeal. Seems clear enough.
However, the jurisdictional issue is muddied by the provisions of the Estates Act, section 10 of which provides that, for any party taking part in a proceeding under that Act, an appeal lies to the Divisional Court. But what if the value of the amount in dispute exceeds $50,000?
Does this cause the Divisional Court to lose jurisdiction? The answer would appear to be “no.” The Court of Appeal, in Re Sinicropi Estate  O.J. No. 838, by agreement of the parties, transferred an appeal from an order on a passing of accounts application to the Divisional Court in which the amount in dispute was over $60,000.00 (as disclosed in the Divisional Court decision: see  O.J. No. 4493).
However, a nice question arises when an appeal is made from a judgment on a contested passing of accounts of an attorney under power of attorney for property. Is the appeal properly made to the Divisional Court? The Estates Act (s. 49(1)) specifically contemplates the passing of accounts by a “guardian.”
It is arguable that, as is the case under s.38 of the Substitute Decisions Act, (“SDA”) this reference to guardian (assuming it means “court appointed guardian”) should be read to include an attorney for property. Of course the references in the SDA significantly postdate the Estates Act, inevitably giving rise to some question as to what was the intention of the legislature when the statute was proclaimed (or whether such a procedural nicety was even considered).
Have a great weekend,
Read the transcribed version of "The Estate Trustee During Litigation"
During Hull on Estates episode #49, David and Jason discuss issues concerning the estate trustee during litigation (ETDL). They consider the circumstances that call for an ETDL, the technical procedure for appointing the ETDL and the powers and duties of the ETDL.
For more information on this topic, see:
- Salisbury v. Dell (1993 Ont. Gen Div);
- Jordan Atin’s artice, The Estate Trustee During Litigation, in Estate Litigation, volume 2. 2nd ed. (Toronto: Thomson Carswell, 2000) at p.24-1; and
- Estates Act, R.S.O., c. E.21, as amended (s.28)
During Hull on Estates Episode #48, Craig Vander Zee and Bianca La Neve continue their discussion on tips for controlling and managing estate litigation, focusing on orders giving directions, oral discovery and mediation.
During Hull on Estates Episode #42, Justin and Megan discussed the case of Godwin c. Bolcso  O.P.J. No. 297 and Section 32 of the Family Law Act.
This case concerns the application by a 58-year-old mother for support from four adult children. The issues covered included the definitions of "reasonable care" and "support", and insight into when support will be ordered for parents.
The final blog for this week wraps up our theme by considering an interesting instance of the interaction between power of attorney litigation and estate litigation.
In Wolfson Estate v. Wolfson, a recent reported decision of the Ontario Superior Court of Justice, a brother and sister were engaged in litigation relating to the estate of their late mother. The mother had jointly held her investment portfolio with her daughter. After the mother became increasingly physically and mentally frail after a stroke, the sister and brother had a falling out, the result being that the sister signed off of the joint account in place of her brother.
By will and by agreement, the mother and daughter had agreed that the jointly held portfolio would pass in accordance with the mother’s Will. However, on the mother’s death, the son, as new joint owner of the portfolio, took the position that the asset had passed to him by right of survivorship and, as he was not a party to the agreement, he was not to be bound to treat the jointly held asset as an estate asset. Moreover, he argued that the mother was upset with her daughter and that, rather than change her will, she sought to effect a change in her testamentary disposition by effecting a joint transfer to her son.