Tag: Estate Litigation
Estate litigation exists in a somewhat unique corner of the litigation world for as a Will can potentially have numerous beneficiaries, each of whom could receive differing amounts from the estate, the potential individuals who could be impacted by any court decision can often extend beyond the parties actively participating in the litigation. As estate litigation can be both emotionally and financially expensive, if you are a beneficiary who only was to receive a relatively modest bequest of say $5,000, you may question whether it can be financially justified for you to retain a lawyer to actively participate in the litigation or whether you should just throw your hands up and not participate. Although the final decision of whether to participate will be case specific to the beneficiary in question, there may be a third option other than actively participating or simply not responding, being that you can formally “submit” your rights to the court.
The concept of “submitting” your rights to the court is in effect a formal declaration to the court that you will not be actively participating in the litigation but that you would still like to be provided with notice of certain steps. By formally submitting your rights to the court the plaintiff is required to provide you with written notice of the time and place of the trial, as well as a copy of the eventual Judgment. You are also personally insulated from any costs award that may be made in the proceeding (other than incidentally as a beneficiary of the estate should costs be awarded out of the estate).
The potentially most attractive incentive to formally submitting your rights to the court however may be that in the event any settlement is reached amongst the other parties that no Judgment may be issued implementing the settlement unless the court is provided with your consent to the settlement or an affidavit confirming that you had been provided with a copy of settlement and had not served and filed a “Rejection of Settlement“. Such a requirement could provide you with the opportunity to object to any settlement before it is implemented, potentially sidelining any settlement that you believe unfairly impacted your interest in the estate.
The process by which an individual can “submit” their rights to the court is governed by rule 75.07.1 of the Rules of Civil Procedure, with the individual submitting their rights to the court being required to serve and file a “Statement of Submission of Rights to the Court“.
Thank you for reading and stay safe and healthy.
In Ontario the courts have been rapidly adapting their practice and procedures in response to the COVID-19 pandemic. Beginning on July 6, 2020, the Superior and Ontario Court of Justice will now be further expanding its operations. The date is dependent on approval from the Chief Medical Officer of Ontario.
The Ministry of the Attorney General (“MAG“) has established an incremental plan to prepare courthouses to facilitate the return of full court operations in Ontario. MAG has announced that Phase One will be implemented on July 6, 2020 in a limited number of courthouses and courtrooms. Court operations will continue to expand with a targeted completion date of November 1, 2020.
I will briefly highlight some of the takeaways from MAG’s strategy for re-opening:
- Reopening of 74 courthouses and 149 courtrooms across Ontario;
- Workplace safety considerations are being implemented throughout courthouse and courtrooms including the installation of plexiglass barriers, hand sanitizer stations, and distance markers. There will also be increased screening procedures for those entering any courthouse and caps on the number of occupants in each room;
- Each courthouse will have risk assessment conducted so that the proper preventative measures can be put into place;
- Virtual hearings will continue as we gradually phase back to in-person appearances.
MAG has yet to clarify on the types of in-person court appearances that will be heard during Phase One. Since the declaration of the emergency, the Superior Court of Justice has heard many “urgent” matters, being motions, case conferences, and pre-trials. It is hoped that the types of matters that are to be heard will be expanded as a part of Phase One.
In the meantime, counsel should continue to utilize and embrace the new technologies offered by the Courts to schedule virtual hearings and integrate them into their regular practice. Rather than waiting for a complete re-opening of the Courts, lawyers should be prepared to “attend” virtual hearings in order to best serve clients and provide them with access to justice.
Thank you for reading and stay tuned!
The COVID-19 pandemic has changed the way the legal profession works at least on a temporary basis. In Ontario, lawyers are required to embrace technology to facilitate dispute resolution and to move files along. Mediations, discoveries, and Court hearings are being conducted virtually via videoconference. Today I will consider some of the benefits of remote mediation and then tips on how to master it.
- Cost – cost will inevitably be lower as it will be organized on an online platform.
- Convenience – The mediation can be arranged on short notice, as all parties can participate from their location of choice. Travel and the associated costs are no longer an issue. Participation of parties that might not have otherwise be available to participate in mediation may now be accessible.
Tips for Successful Remote Mediation:
- Ensure your client is set up with the proper technology: a computer equipped with webcam, microphone, and speakers. Lawyers cannot assume that every client has access to a computer and quick internet connection.
- Consider using a 3rd party provider such as Neesons Court Reporting & Mediation, to host the mediation. This provider can facilitate the movement of parties in and out of plenary and breakout rooms, summon the mediator, arrange a counsel-to-counsel meeting, and assist with technical issues. This will ultimately save the parties time and expense.
- Ensure your clients are aware of privacy and confidentiality within meeting rooms. Client comfort is essential for a successful mediation.
- A lack of personal interaction means that your client may not be able to warm up to a mediator, which often times is necessary for a successful mediation. An effective mediator will structure a meditation in a way to facilitate adequate confidential one-on-one communication with the parties to assist with resolving the limitations of working with a
mediator through a video link rather than in person.
- Take lots of breaks as attending virtual mediation is more tiring than in person.
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A recent class action proceeding against the estate of a deceased illustrates an estate’s limited liability. That is, an estate can’t be liable for more than what is left in the estate.
The case, Davidson v. Solomon (Estate), 2020 ONSC 2898, involved a class action against the estate of a deceased orthodontist. The orthodontist was alleged to have, for years prior to his retirement in 2015, “inappropriately” video recorded patients while he was providing them with dental services. 295 patients, many of whom were minors, were identified as victims.
Dr. Solomon was charged in 2017 with various offences, including voyeurism, making child pornography and possessing child pornography. He died on October 5, 2017 at the age of 69, before the criminal charges were tried. Accordingly, the criminal charges were withdrawn.
The incidents were discovered in 2017 when the Royal College of Dentists began investigating after receiving a complaint about Dr. Solomon’s services. In the course of the investigation, camcorder tapes were discovered, and Children’s Aid and the police were notified. The tapes dated from 1994 to 2014.
A class action was brought against Dr. Solomon on September 29, 2017. According to a news report, the claim sought damages of $1m, Family Law Act damages of $50,000 for each family law claimant, and $500,000 in punitive and exemplary damages. The claim was continued against Dr. Solomon’s estate after his death.
The estate denied the allegations. The allegations were never proven in court.
However, after extensive investigation, including dialogue with the estate’s lawyers, the representative plaintiff’s lawyer determined that the value of the estate was likely limited to $500,000. In light of the criminal nature of the allegations, it was determined that professional liability insurance was not likely to respond to the claim. Thus, it was concluded by the representative plaintiff that any judgment for damages would be limited to $500,000.
In light of this, a settlement was reached which saw to the estate paying a total of $425,000 for damages, administration fees, and legal costs. The court approved this settlement, noting, amongst other factors, that the estate had limited assets to satisfy any judgment. In approving the settlement, the judge hearing the approval motion stated, “Furthermore, there is a significant risk that but for this settlement, the Class Members would recover nothing, given the limited assets available to satisfy any judgment.”
Presumably, the estate plead plene administravit praetor: that the estate had limited assets. Read about this doctrine here.
Thanks for reading.
My last blog discussed recent steps taken by the legislature to modernize the administrative side of the practice of law in Ontario. The practical side has also seen a number of developments that have emerged as a direct result of the ongoing pandemic. Some of these efforts have been spearheaded by the courts directly, while others, such as the Estate Arbitration and Litigation Management initiative, have been developed by members of the Bar an in effort to continue moving matters towards a resolution despite limited court access.
A recent decision of the Superior Court of Justice provides some important commentary on the judiciary’s expectations of parties and counsel to adapt to the current reality using these tools and others so that files can continue to progress.
In Arconti v Smith, Justice Myers grappled with the competing views of the parties as to whether an examination for discovery ought to proceed by way of a videoconference. The defendant, who was to submit to examination, proposed that the examination proceed by way of videoconference given the social distancing guidelines in place.
The plaintiff objected on several grounds. Among other objections, the plaintiff argued that the defendant and their counsel ought to be in each other’s presence to ensure the process proceeded smoothly. Alternatively, the plaintiff argued that the fact of conducting an examination remotely would “[deprive] the occasion of solemnity” and would otherwise make it more difficult to assess the defendant’s demeanour as a witness. The plaintiff argued that the examination ought to be deferred until social distancing guidelines were lifted.
Justice Myers’ initial response to the plaintiff’s position was simple, yet persuasive: “It’s 2020.” He held that the parties have technological tools at their disposal to conduct examinations and other litigation steps remotely, and that the use of such tools was especially salient in the context of the social distancing guidelines. Although Justice Myers advised that the concerns raised by the plaintiff might be relevant in different circumstances, they were not at issue there.
Ultimately, Justice Myers held that the use of readily available technology should be part of the skillset required both of litigators and the courts, and that the need to use such tools was merely amplified, not created, by the pandemic. The plaintiff was ordered either to conduct the examination of the defendant by videoconference, or to waive their entitlement to conduct the examination altogether.
This decision provides a glimpse into the court’s expectations of litigants and counsel to move matters forward in spite of the social distancing guidelines and court closures. While the current directives and legislation cannot be used to compel a party to perform a particular litigation step by audiovisual means, one may read Arconti as suggesting that the courts will nonetheless expect the parties to consider the entirety of their skillset to move matters along so that they do not languish in litigation purgatory as a result of social distancing guidelines.
Once social distancing guidelines have been lifted, it will likely be some time before the courts have dealt with the matters that were adjourned between March and June and are in a position to hear new matters. Parties who are willing to use the tools at their disposal to move matters forward and avoid contributing to this delay may find themselves commended by the judiciary. Those who are resistant to adapt, on the other hand, may expose themselves to commentary from a judge, or possibly cost consequences for their client, depending on the circumstances.
If you are interested in learning more about litigation procedure and estate planning best practices in the time of COVID-19, please consult our information guide.
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A recent decision out of Alberta on holograph wills is interesting. The Alberta Court of Queen’s Bench decision released on February 20, 2020 in Edmonton in the Estate of Dalla Lana, 2020 ABQB 135 starts with the following :
“Mr. Dalla Lana made a will in 1997. On March 1, 2018 (four days before he died) and via notes made on two sticky notes, he made what he described as “changes to my earlier will”. The “changes” if valid, effectively rewrote the entire will.”
The decision then goes on to find that the “two sticky notes” were a valid will. This was one more decision in a long line of cases (in substantial compliance jurisdictions, unlike Ontario) with wills being upheld when written on everything from napkins to tractor fenders.
If a valid will can be done on a sticky note, one should ask is there any reason now why an electronic will could not be done on an iPad or smartphone?
Pandemic emergency Orders in Ontario have recently accepted wills being signed and witnessed by video conference or by counterpart. However, there is still a requirement for a “hard copy” of the will. A purely electronic will with a digital signature is still not permissible.
Some jurisdictions have already allowed electronic wills into probate. In Australia, the High Court of Queensland gave probate to a will in 2013 contained in the iPad of the deceased, in Yu Estate 2013 QSC 322.
Although digital electronic signatures have been allowed in Ontario for use in some business situations for many years, there are some restrictions on doing electronic will signatures which are found in the Electronic Commerce Act, 2000, SO 2000, c 17,
31 (1) This Act does not apply to the following documents:
- Wills and codicils.
- Trusts created by wills or codicils.
- Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care.
Given the emergency statutory provisions triggered by the pandemic, it seems inevitable that a meaningful debate will soon ensue about the merits of electronic wills and the broader question of whether Ontario should adopt substantial compliance in its estates legislation.
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Please enjoy these blogs on the subject:
As a result of the COVID-19 pandemic, pursuant to the Notice to the Profession, the courts are presently restricted to hearing mainly urgent matters. For civil and commercial matters, this includes “urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.” There is also a broad ability for the court to hear any other matter that it deems necessary and appropriate to be heard on an urgent basis, but these matters will be strictly limited.
In a recent decision, Weidenfeld v Parikh-Shah, 2020 ONSC 2401, the court considered two urgent motions brought by the plaintiff and the defendants, respectively. The defendants sought to have monies that had been paid into court several years ago, paid out from court. The plaintiff sought, among other things, an order prohibiting the payment out of the monies. The decision did not provide details of the background of the litigation between the parties.
The court stated that the parties’ first step is to establish that their respective motions are, in fact, urgent. The court provided some guidance as to what is needed in this regard:
“The obligation is on the moving party to provide cogent, particular and specific evidence to show the court that the relief requested is urgent. Speculative, supposition or theoretical evidence is not good enough. The present environment and limited use of judicial resources mandate that the urgency must be real and immediate.”
Unfortunately for the parties in this case, the court found that their affidavit evidence did not provide cogent evidence to satisfy the court that the relief sought was urgent. The reason for which the defendants had brought the motion seeking to have money paid out of court was not set out in the decision.
The court did consider the category of urgent matters where “immediate and significant financial repercussions may result”, and specifically mentioned (a) matters that may put a person in financial jeopardy; (b) the funding of a business, business venture or construction project, failing which the financial viability of the project is in jeopardy; and (c) the necessity of a person to have resources to pay expenses or an order for the health and safety of a person; as issues that would meet the test of “immediate and significant financial repercussions”.
In the current circumstances, we are continually adjusting to new ways of doing things. This includes bringing court proceedings. Based on the Weidenfeld v Parikh-Shah decision, it is clear that parties will need to provide clear and sufficient evidence to satisfy the court as to the urgency of the matter in order for the court to hear the proceeding while court operations are restricted.
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As we know, due to the COVID-19 pandemic, Ontario has passed emergency legislation allowing for Wills and powers of attorney to be executed and witnessed virtually, and in counterparts. This legislation will remain in effect for the duration of the declared emergency. Although Premier Doug Ford recently announced a plan for reopening Ontario, the timeline for doing so is still vague, and it’s unclear when the emergency will be declared to be at an end. Once the emergency is over, the normal rules for execution of Wills and powers of attorney, as set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26, and the Substitute Decisions Act, 1992, S.O. 1992, c. 30, will once again govern how such documents may be validly executed.
Before coronavirus became such a pressing concern, there was some discussion in the United States, of allowing Wills executed electronically to be considered valid testamentary documents. According to this article in The New York Times, entitled “A Will Without Ink and Paper”, at the time the article was published in October 2019, some states already had laws to allow e-signatures on Wills, and others were looking to adopt similar laws this year.
In the US, the Uniform Law Commission has proposed the Uniform Electronic Wills Act, which is intended to serve as a model for states who wish to enact such legislation. The law would allow testators to complete the entire Will-making and execution process online, without a lawyer or notary present. There are already online services, currently serving states that already have laws allowing electronic Wills, which provide a platform for the creation of these digital Wills.
According to The New York Times article, the process of creating an electronic Will involves a testator creating a Will online, and then having a video-conference call with a notary. The notary will review the document, ask questions of the testator, notarize it, and send it back.
Although the concept of electronic Wills seems convenient, the costs may ultimately outweigh the benefits. As one lawyer quoted in the article states, signing a Will “is not like getting toilet paper delivered by Amazon instead of going to a supermarket…This is a solemn thing that people don’t do every day.” The “inconvenience” of consulting a lawyer, having a Will professionally drafted, and executed in the traditional way, will likely be worth the trouble for most testators, particularly when you consider that this is not a task that needs to be done repeatedly, at frequent intervals (like going to the grocery store to buy toilet paper).
The article mentions a number of points as to why electronic Wills may not be such a great idea. Without a lawyer’s involvement, there is a heightened risk for undue influence to go undetected. Testators with significant assets that may be structured in complicated ways, or who have unique family situations, such as a blended family, are not likely to be well-served by the creation (let alone the execution) of a Will online, without estate planning advice from a lawyer.
Desperate times call for desperate measures, and it is helpful to have alternate methods of executing Wills and powers of attorney in these unprecedented times. But when life goes back to normal, I think we can be comfortable with the return to the “old-fashioned” way of executing Wills and powers of attorney. Although some may consider the process to be cumbersome, the added protection for testators, and the comfort of an estate plan that takes into account each testator’s unique situation, is worth the price.
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Natalia Angelini recently blogged about some helpful tips from LawPRO on how to minimize the risk when virtually witnessing Wills and powers of attorney. On April 24, LawPRO posted another helpful article about the risks of “renting out” your signature as a virtual witness.
The emergency legislation requires that one of the witnesses to a Will that is executed by means of audio-visual communication technology (which now temporarily meets the Succession Law Reform Act, R.S.O. 1990, c. S.26 requirement that the testator and witnesses be “in the presence of” each other), be a Law Society licensee. This means that some of us may be asked to be witnesses to a Will or power of attorney that we did not prepare ourselves. However, as LawPRO points out, simply being a witness does not necessarily mean that we will not be held responsible if there are problems with the Will or power of attorney.
Some of the issues that may arise could include the following:
- Problems with the Will or power of attorney not being executed properly, in accordance with the requirements for due execution and the specific requirements of virtual execution pursuant to the temporary legislation.
- The Will or power of attorney not reflecting the testator or grantor’s wishes. This may arise if a testator or grantor prepares their own Will or power of attorney from an online service or kit, resulting in a document that is likely not tailored to the testator or grantor’s particular situation, financial circumstances, and wishes.
- Technical errors in the document, such as the omission of a residue clause, which can drastically impact the distribution of the testator’s assets.
LawPRO has provided some tips for how to protect yourself if you are asked to be a witness to a Will or power of attorney that you did not prepare (although the tips seem equally applicable if you did prepare the document in question):
- Take detailed notes.
- Send a reporting letter following the execution of the document and confirm the scope of your retainer.
- Record the signing (with the client’s permission).
You may also consider having the testator or grantor sign a limited retainer agreement, before you witness the Will or power of attorney, which explicitly sets out that you have been engaged only for the purpose of witnessing the document, and not to review it or provide any legal advice.
Thanks for reading, and stay safe!
These other blog posts may also be of interest:
We recently wrote about the Estates Arbitration Litigation Management (“EALM”) initiative, which I have spearheaded in an effort to keep estate litigation matters moving forward during the COVID-19 pandemic. As our readers will know, at this time, access to courts is currently limited and EALM is available as a means of obtaining assistance in the determination of procedural and/or interim (and certain substantive) matters that are not urgent in nature.
Since announcing the EALM initiative, I have heard from many members of the Estates Bar, and many others as well across the province, who look forward to implementing EALM in their own practices. I have now also had an opportunity to consult with the Office of the Public Guardian and Trustee and the Office of the Children’s Lawyer to ensure that EALM is structured in a manner such that its use does not in any way restrict their roles in matters where the rights of persons under legal disability may be affected.
A copy of our draft EALM agreement, which is the product of consultations with senior practitioners, is available here.The draft EALM agreement is intended to serve as a template, to be updated by counsel prior to its execution as may be agreed upon by the parties and the proposed arbitrator based on the circumstances of the case, the issues to be submitted to arbitration, and the terms of the engagement of the arbitrator.
A list of senior estates practitioners who are prepared to assist as EALM arbitrators is available here. I thank all of those who have demonstrated an interest in assisting other members of the Estates Bar as arbitrators and would ask that you please contact me at firstname.lastname@example.org if you wish to be added to our list of EALM arbitrators.
We look forward to hearing from our peers regarding their experiences with EALM and how this tool is assisting us all in continuing to advance matters in the best interests of our clients during this period of uncertainty.
Thank you for reading and stay safe.