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.
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We have previously blogged about NoticeConnect’s Canada Will Registry. The Will Registry allows lawyers and law firms to register their clients’ estate planning documents. Other lawyers are then able to search the Registry for the Will of someone who has passed away. The Registry alerts the lawyer who registered the Will of the search, and the lawyer can decide whether to disclose the existence and location of the Will.
On Tuesday, Premier Doug Ford released a list of essential businesses, which included lawyers, meaning that law firms may remain open during the shut-down of non-essential businesses in Ontario. That being said, we are still being encouraged to maintain social distancing, and many of us are working from home to try to help prevent the spread of COVID-19.
Working from home can present a unique set of challenges for solicitors with an estate planning practice, given the volume of original documents that must be stored, organized, updated, and maintained. Records may be kept partially, or entirely by paper records, which are physically located at the office, and inaccessible from home.
The Will Registry can be a helpful tool in organizing estate planning documents electronically, in order to reduce or eliminate issues with accessing records and information when working remotely.
NoticeConnect recently posted this blog setting out how the Will Registry can help professionals work from home. For instance, one of the tools mentioned is the ability to attach electronic copies of documents, such as Wills, to your registered records. This would allow you, and any staff who have access to your digital Will vault, to access and review estate planning documents. This may be helpful in a situation where a client contacts you seeking advice as to whether their Will needs to be updated; you would not be required to go into the office in order to review the client’s Will. There are also organizational tools, which can help with searching, sorting, and updating your records.
In these uncertain and constantly changing times, it is useful to consider any tools that may help us adapt and maintain our practice.
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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.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
A couple of weeks ago, my colleague Noah Weisberg and I did a podcast about the recent Ontario Superior Court of Justice decision Re Vaudrey, 2019 ONSC 7551. But for those who prefer to read rather than listen, I thought I would provide a brief summary on the blog as well.
The testator in Re Vaudrey died in September 2018. Prior to his death, he had been married to Ethel Vaudrey. The testator and Ethel had been separated for a number of years, but had not divorced. Ethel predeceased the testator, passing away in 2007.
The testator and Ethel had two daughters, Sheila and Kristin. Sheila also predeceased the testator in 2013. She had never married and had no children. After the testator and Ethel separated, Kristin became estranged from the testator. The decision notes that Kristin described the testator as emotionally and verbally abusive.
Kristin was the only surviving family member of the testator.
The testator left a Will executed in 2005. The court was of the view that, based on its format and content, the Will did not appear to have been prepared by a lawyer.
The Will provided that Sheila was to be appointed as estate trustee, and inherit the residue of the testator’s estate, provided that she survived the testator by 30 days. If Sheila did not survive the testator for 30 days, the Will provided that Ethel was to be appointed as estate trustee, and inherit the residue. Again, however, this was conditional on Ethel surviving the testator by 30 days. As mentioned above, both Sheila and Ethel predeceased the testator.
The Will was witnessed by Sheila and another witness.
Lastly, the Will also specifically stated that “under no circumstances is any part of [the testator’s] estate to be transferred to [his] estranged daughter, Kristin P. Vaudrey, or to any of her descendants.”
Unfortunately for the testator, he had not set out in his Will how the residue of his estate was to be distributed in the event that both Sheila and Ethel predeceased him, as they did. The court found that the residue of the estate was to be distributed pursuant to the intestacy rules set out in s. 47 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). On this basis, Kristin was determined to be the sole heir-at-law of the residue. Accordingly, despite the testator’s wish that Kristin not inherit any part of his estate, his failure to include a gift-over clause with respect to the residue resulted in her inheriting the entire residue.
It is also interesting that Sheila was a witness to the Will. Pursuant to s. 12 of the SLRA, where a beneficiary witnesses the execution of a Will, the bequest to that beneficiary will be void. Even if Sheila had survived the testator, the gift of the residue to her would have been void in any event.
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Today’s blog is Part 2 in my discussion of a New Yorker article by Arthur Krystal that seeks to present a realistic view of aging. Yesterday I reviewed some of the factors in the article that pointed towards the idea that we improve as we age. Today I will review the points raised in support of what the author considers to be the “truth” about aging.
I think the following sentence really sums up an important (but somewhat bleak) point that the author is making: “There is, of course, a chance that you may be happier at eighty than you were at twenty or forty, but you’re going to feel much worse.”
The article considers the physical effects of aging, as well as mental ones, namely dementia. Although we continue to explore ways of detecting, predicting, and treating dementia, we do not yet have a cure for the disease.
The New Yorker article also summarizes a (possibly even more bleak) argument made in an essay published in The Atlantic in 2014, with the title “Why I Hope to Die at 75”. The author of that article, Ezekial J. Emanuel, argues that by age 75, most people will have a difficult time generating creative and original thoughts, or being productive. Emanual doesn’t plan on killing himself at 75, but states that he won’t take steps towards actively prolonging his life, such as cancer-screening tests.
Last year I blogged about another article that discussed aging, and the concept of how we can live better, now that we are living longer. That article considered the work being done related to anti-aging and the creation of products to make older people’s lives easier. I think this is a salient point given our aging population, and is also relevant to the points made in Krystal’s New Yorker piece. Although we can admit that there are physical challenges that arise with aging, there are also ways those challenges can be ameliorated, and work continues to be done in this area.
I admit that, at the present time, I have very little authority or personal experience with aging, as it is discussed in the article. While I certainly see the author’s point about the downsides of aging, I think I will choose to favour the more optimistic view as outlined in yesterday’s blog.
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In late 2019, an article in The New Yorker asked the question: “Why can’t we tell the truth about aging?” The author, Arthur Krystal, considers several aspects of aging, with what appears to be the aim of presenting a realistic portrait of what it is truly like to get older. I thought there were a lot of interesting points mentioned, so in Part 1 of this blog (today) and Part 2 (tomorrow), I will be considering some of those points.
For today’s blog, I will review some of the author’s points relating to the idea that we improve as we age (although the author certainly does not appear to embrace this view). Tomorrow’s blog will consider some of the more negative views and aspects of aging.
The article starts off by listing a number of recent books about aging, and compares it to the more popular view from about 50 years ago that aging is something “we do not care to face”. These days, the trend has moved towards celebrating aging, and looking at it in a positive and optimistic light. The literature is clearly capturing this view, with titles such as “Better with Age: The Psychology of Successful Aging”.
Some of the authors of the books mentioned state that the older brain works “in a more synchronized way” and the structure of the brain is altered with aging in ways that boost creativity.
There is also an interesting discussion about whether we get happier as we age. This concept seems to make sense if we consider notions such as being more comfortable in our own skin, and experiencing less social anxiety as we get older. The article mentions a study indicating that happiness over the course of our lives follows a U-shaped curve where we are happiest as children and in old age (and least happy in the middle of our lives). Apparently, however, there has been some question as to the accuracy of this curve for several reasons, the simplest one being that happy older people may be more likely to participate in happiness surveys than seniors who feel miserable, unsatisfied, and apathetic.
I quite like the sentiment expressed by Helen Small, a professor at the University of Oxford, as summarized in the article, that “our lives accrue meaning over time, and therefore the story of the self is not complete until it experiences old age—the stage of life that helps us grasp who we are and what our life has meant.”
Thanks for reading and I hope you will join me for part 2 tomorrow!
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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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