Tag: Estate

05 Nov

Can you Reopen a Trial on the basis of Credibility?

Rebecca Rauws Litigation Tags: , , , , , , , , , , , 0 Comments

In a recent decision from the British Columbia Court of Appeal, Mayer v Mayer Estate, 2020 BCCA 282, the court considered an application to reopen a trial to admit new evidence or to have a mistrial declared (the “post-trial application”). The post-trial application arose as a result of an email between the respondent’s daughter-in-law (who had been assisting the respondent with the litigation) and the respondent’s counsel. The appellant had obtained the email from the deceased’s computer. The deceased and the respondent had shared an email address, and when the appellant connected the computer to the internet some emails were downloaded from the shared account, including the email in question. The appellant took the position that the email that she had obtained impugned the respondent’s credibility by contradicting evidence she had given in the previous proceedings. The post-trial application was dismissed, and the appellant appealed the decision.

The Court of Appeal dealt with the question of the email fairly briefly. The post-trial application judge had concluded that the email was a communication that was subject to solicitor-client privilege. The Court of Appeal appears to have accepted that finding.

The content of the email is not specifically set out in the decision, but appears to have related to the purpose for which the respondent had made certain transfers to the deceased. It appears that, notwithstanding the finding that the email was privileged, the court still considered whether the contents of the email did impact the respondent’s credibility.

The respondent swore affidavit evidence in the original proceedings that she had made two transfers to the deceased to assist him in paying some tax debts. The email apparently indicated that at the time the respondent swore her affidavit, she knew that the deceased did not, in fact, have any tax debt. The post-trial application judge’s analysis stated that it appeared the deceased may have been untruthful with the respondent at the time the transfers were made, and probably used the funds for something other than tax debts, which he did not have. However, the respondent’s evidence in this regard was not a lie, because at the time of the transfer, all she knew was what the deceased had told her, namely that he intended to use the funds to pay his tax debts.

Additionally, the post-trial application judge had already addressed minor inconsistencies of this nature in the respondent’s evidence in his reasons from the original proceeding, noting that they were not consequential and fully explained by the respondent.

The Court of Appeal dismissed the appeal. In making this decision, the Court of Appeal notes that “it is apparent that the appellant is seeking largely to re-argue the case as originally tried before Justice Crossin, particularly as to credibility, which is not open to her.”

The Court of Appeal also awarded the respondent special costs (on a higher scale), based on its conclusion that the very serious allegations made and maintained by the appellant against the respondent constituted “sufficiently reprehensible conduct to merit rebuke in the form of an award of special costs”.

Although scenarios may exist where new evidence could have such an impact on credibility that it would warrant reopening a trial, one should be careful to fully assess the nature and strength of such evidence. The award of special costs also serves as further caution that serious allegations such as fraud and perjury should be made very selectively, when they are appropriate and fully supported by the evidence.

Thanks for reading,

Rebecca Rauws

 

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03 Nov

Litigation Guardian vs. Section 3 Counsel

Rebecca Rauws Capacity Tags: , , , , , , , , , 0 Comments

When a party is incapable of instructing counsel, or his or her capacity is in question in a proceeding, there are safeguards in place in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), and the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”) to ensure that the incapable party’s interests are protected. The Rules provide for the appointment of a litigation guardian for a party under disability, while the SDA provides for the appointment of “section 3 counsel” when the capacity of a person is in issue in a proceeding under the SDA and they do not have legal representation. While a litigation guardian and section 3 counsel may have a similar purpose, their roles are quite different. Situations may arise where one or the other is required, but there are also times when it may be difficult to determine which one is necessary in the circumstances. The recent decision of Dawson v Dawson, 2020 ONSC 6001 is one such instance.

In Dawson, one of the parties, Michael, was incapable of managing property or instructing counsel, and was the subject of a proceeding under the SDA. Michael’s wife, Josephine, sought to be appointed as his litigation guardian in that proceeding. The Office of the Public Guardian and Trustee (the “PGT”) opposed the appointment of a litigation guardian, and took the position that the appointment of section 3 counsel would be appropriate in the circumstances.

Ultimately, the court appointed Josephine as litigation guardian for Michael, notwithstanding that section 3 counsel would typically be appointed in such a situation. Part of the court’s reasoning was that “[b]oth a litigation guardian and s. 3 counsel are responsible for protecting the interests of a vulnerable litigant, but they do so in significantly different ways.”

The court highlighted the limitations on section 3 counsel, being that they are counsel, not a party. If a lawyer is acting for a client with capacity issues, as may be the case with section 3 counsel, it may be difficult or impossible for the lawyer to ascertain the client’s wishes and instructions. Without instructions from his or her client, a lawyer cannot take a position in a proceeding, even if one assumes that the client would have agreed with that position, or that it is in the client’s best interests. Section 3 counsel cannot make decisions on behalf of his or her client.

A litigation guardian on the other hand, stands in the shoes of the party under disability, and is able to make decisions on behalf of the party. As stated by the court: “[a] litigation guardian therefore does precisely what s. 3 counsel cannot do, that is, make decisions on behalf of a vulnerable person.”

The role of section 3 counsel is very important in the context of proceedings under the SDA, given the significant impact that, for instance, a finding of incapacity, and the appointment of a guardian can have on an individual’s liberty. However, where section 3 counsel is unable to get instructions, the appointment of a litigation guardian may be necessary in order to protect the individual.

Thanks for reading,

Rebecca Rauws

 

These other blog posts may also be of interest:

02 Nov

When can a Trustee Purchase Trust Property?

Rebecca Rauws Executors and Trustees Tags: , , , , , , , , , 0 Comments

Broadly speaking, a trustee cannot personally profit from his or her role as a trustee. “Profit” can mean a variety of things. One way in which a trustee could potentially profit from a trust is through the purchase of trust property.

A trustee may not purchase trust assets unless there is an express power in the Will or trust instrument allowing a trustee to do so, or if the purchase is approved by the court. Even where a trustee has the express power to purchase trust assets, he or she must still act in accordance with his or her fiduciary obligations to the beneficiaries of the trust or estate. Additionally, a trustee who has been authorized to purchase trust assets would be well-advised to obtain consents and releases from the beneficiaries, or to consider seeking court approval in any event, given that such a situation is ripe for claims that the trustee breached his or her fiduciary duty.

The court should only approve the sale of trust property to a trustee where the sale is clearly to the advantage of the beneficiaries. Demonstrating that a sale is clearly advantageous to the beneficiaries can be difficult, as it is not enough to just show that the purchase price is fair. For instance, even if a trustee has offered a fair price, if there is another purchaser who is willing to purchase the asset for a greater price, the trustee’s purchase will not be to the advantage of the beneficiaries.

The problem with a trustee purchasing trust assets is that in doing so, he or she is practically putting him or herself in an irreconcilable conflict of interest: the trustee has a duty to maximize the value of the trust assets for the beneficiaries, but in his or her personal capacity, will want to minimize the price paid for an asset. A trustee seeking to purchase trust property will need to ensure that he or she has taken sufficient steps to satisfy the court that he or she has maximized the value of the asset.

In Re Ballard Estate, (1993) 20 O.R. (3d) 189, a trustee, S, obtained certain option rights to purchase trust property. The trustees obtained two valuations of the property in question, and S and the other trustees negotiated a purchase price for the property in question at the upper end of the range of values pursuant to the valuations. However, the property was not offered for sale on the open market, and the trustees did not take steps to identify other potential purchasers. The court found that the trustees could have done more to ensure the maximum value was obtained for the asset, stating that the trustees should have taken “all reasonable positive steps to ferret out the best price”. Trustees cannot avoid their obligation to maximize the value of the assets by taking a passive stance and hoping that other potential purchasers will find them.

Thanks for reading,

Rebecca Rauws

 

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24 Sep

Corporations and Estates – What happens when a Will gifts an asset that is actually corporately owned?

Stuart Clark Estate Planning Tags: , , , , , , , , , , , , , , , , , 0 Comments

The use of privately held corporations to manage an individual’s assets or business interests seems to be an increasingly common strategy and tool. Although the use of privately held corporations offer a number of potential advantages to the individual both during their lifetime and as part of their estate planning, it does raise a number of novel issues for the administration of the estate which may not exist if these assets had been directly owned by the individual. Such potential issues manifested themselves before the Ontario Court of Appeal in the relatively recent decision of Trezzi v. Trezzi, 2019 ONCA 978, where the court was asked to determine the potential validity of a bequest in a Will of property that was not directly owned by the testator personally but rather owned by them through a wholly owned private corporation.

As privately held corporations are often wholly owned by a single individual owner the individual in question would be forgiven for thinking that any assets that are actually owned by the corporation are their own. Such a misconception could carry with it some significant legal issues however, as it ignores the important fact that at law the corporation and the individual owner are two distinctly separate legal entities, and that although the individual owner of the corporation can exercise almost absolute control over the corporation as the sole shareholder, and could through such control likely direct the corporation to take any action regarding any asset the corporation may own (subject to any obligations of the corporation), they do not personally “own” any asset that is in fact owned by the corporation. Such a distinction is potentially important to keep in mind when a person who owns assets through a private corporation is creating their estate plan, as they should be mindful of whether any specific asset which they wish to bequest is owned by them personally or through the corporation.

In Trezzi the testator left a bequest in their Will to one his children of all equipment and chattels that were owned by a construction company that was wholly owned by the testator. This bequest was challenged by certain of the residuary beneficiaries, who argued that as the equipment and chattels in question were not actually directly owned by the testator, but rather the corporation, the testator’s bequest of such items had failed and that the items in question should instead continue to form part of the corporation and be distributed in accordance with the residue clause to their potential benefit.

The Court of Appeal in Trezzi ultimately upheld the bequest in question; however, in doing so, noted that the language was potentially problematic and encouraged counsel to be more careful when drafting in similar circumstances (even including potential precedent language to follow from the Annotated Will program). In upholding the bequest the Court of Appeal was in effect required to do an interpretation application for the Will, noting that they placed themselves in the position of the testator and considered what his intention would have been when including the provision in question. The court ultimately concluded that it would have been the testator’s intention with such a provision that the executor was to wind up the corporation in question, with the assets being distributed to the beneficiary in question as part of such a process. In coming to such a conclusion the court states:

While it is true that Peter, as the sole shareholder of Trezzi Construction, did not directly own the corporation’s assets, that does not complete the analysis. In substance, Peter’s shares in Trezzi Construction became part of the estate, and Peter effectively directed his executors to wind-up the company and to distribute its assets in accordance with his will, even though he did not own those assets directly. As already noted, the key question thus boils down to whether this was indeed Peter’s subjective intention in his will…” [emphasis added]

Although cases like Trezzi show that under certain circumstances a bequest of assets which are not directly owned by the testator but rather through a corporation can be upheld such a result cannot be guaranteed, as the Court of Appeal in Trezzi was required to resort to the rules of construction and place themselves in the position of the testator to uphold the bequest in question. As a result, a testator would be wise to take extra care when dealing with an estate plan that includes the potential bequest of assets that are corporately owned to ensure that the ownership of such assets is properly described and the executor is provided with any necessary authority and direction to deal with the corporately held assets on behalf of the estate.

Thank you for reading.

Stuart Clark

10 Sep

Substitute Decision-Making Disputes: The Best Interests of the Incapable is Key

Rebecca Rauws Power of Attorney Tags: , , , , , , , , , , , 0 Comments

I have previously blogged about Vanier v Vanier, a decision of the Ontario Court of Appeal relating to a dispute amongst attorneys, in which the Court of Appeal agreed with a statement by the motion judge that the attorneys had “lost sight of the fact that it is [the incapable’s] best interests that must be served here, not their own pride, suspicions, authority or desires”. Unfortunately, it is often the case that in disputes amongst family members over the management of an incapable family member’s care or property, the incapable’s interests may be overshadowed by the fight amongst the other members of the family.

The recent Ontario Superior Court of Justice decision in Lockhart v Lockhart, 2020 ONSC 4667, appears to be another similar situation.

The applicant, Barbara, and the respondent, Robert, are children of Mrs. Lockhart. Mrs. Lockhart was 89 years old at the time of the decision. A number of years before, she had contracted bacterial meningitis and had suffered some long-lasting effects that impacted her cognition. Mrs. Lockhart’s husband predeceased her on October 2, 2018. Prior to his death, he had made personal care and treatment decisions for Mrs. Lockhart when she was not able to do so herself. After Mrs. Lockhart’s husband’s death, Barbara was unable to locate a power of attorney for personal care for Mrs. Lockhart; accordingly, Barbara and Robert proceeded to make personal care decisions on Mrs. Lockhart’s behalf, jointly.

However, in December 2018, Robert arranged to have Mrs. Lockhart sign a power of attorney for personal care and a power of attorney for property naming him as her sole attorney (the “2018 POAs”). Barbara was not aware of the 2018 POAs, and was not involved in their preparation or execution. Barbara did not even become aware of the 2018 POAs until April 2020 when Robert revealed them to her in the midst of a dispute between Barbara and Robert relating to Mrs. Lockhart’s care. Barbara subsequently challenged the validity of the 2018 POAs on the basis that, among other things, Mrs. Lockhart was not capable of granting them.

The court found that the 2018 POAs were of no force and effect, and were void ab initio. The court was also asked to determine which of Barbara and Robert would be authorized to make decisions on Mrs. Lockhart’s behalf under the Health Care Consent Act, 1996 (the “HCCA”). Each of Barbara and Robert took the position that they should have sole decision-making authority.

Notably, the court stated specifically that “[t]his dispute has less to do with Mrs. Lockhart’s interests and more to do with a power struggle between two siblings.” Given this outcome, and the facts leading to the litigation, I found the solution arrived at by the court interesting. The court determined that both Barbara and Robert are authorized to make personal care, health care, and treatment decisions under the HCCA, on behalf of Mrs. Lockhart, jointly. It appears that the court was satisfied that both of Barbara and Robert would exercise that authority in Mrs. Lockhart’s best interests, notwithstanding the dispute between them that lead to litigation. Other than the major disagreement between Barbara and Robert that lead to the litigation, the court found that “it appears that they have, in the main, come to decisions that have been in Mrs. Lockhart’s best interest and have kept her safe.” This historic ability to make joint decisions seems to have been sufficient for the court to decide that Barbara and Robert should continue doing so going forward.

Thanks for reading,

Rebecca Rauws

 

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08 Sep

Older Adults and Capacity to make Decisions: Protection vs. Autonomy

Rebecca Rauws Elder Law Tags: , , , , , , , , , , , , , 0 Comments

As we age, many of us begin to experience the normal consequences of aging, including some memory loss. Unfortunately, many of us may end up suffering from Alzheimer’s and related dementias. As a result, capacity has become a bigger problem among seniors.

There are ways to manage decision-making for a senior who has lost capacity to make his or her own decisions about care or property. If the person executed a power of attorney, their attorney can step in. If there is no power of attorney, a guardian can be appointed by the court. However, the imposition of a substitute decision maker can be a significant restriction on an older adult’s liberty, and some seniors may resist that imposition.

An article in The Walrus earlier this year considered this issue, and the impact a finding of incapacity can have on a senior’s autonomy in Canada.

One of the concerns discussed in the article is that “some seniors find that, once declared incapable, they are unable to challenge the decision.” In Ontario, we have the Consent and Capacity Board, which is an independent tribunal that, among other things, reviews various determinations regarding an individual’s capacity. However, this is apparently a rarity in Canada. The only other similar body is located in the Yukon.

Another issue raised by the Walrus article is with the lack of a standardized system for assessing capacity. The person doing the assessment can vary (doctor, nurse, social worker, etc.), as well as the tests conducted. This is made even more complicated by the fact that there are differing levels of capacity for different tasks (e.g. making a Will, managing property, getting married, granting a power of attorney for personal care).

Unfortunately, the lack of attention paid to the issue of aging and capacity appears to be systemic. As cynically, but perhaps also realistically stated in the Walrus article: “It can seem like a great deal of attention is paid to other institutions that house vulnerable segments of the population, such as children in daycares. But there’s no future in aging; there is next to no potential that a senior might one day cure cancer or be the next prime minister. Reform in elder care may be desperately needed, but it hasn’t been forthcoming.”

There is a fine balance to be struck between restricting seniors’ autonomy, and protecting vulnerable people. A collaborative “supported decision-making model”, as discussed in the article may be one way of doing this. I hope that as more attention is drawn to these issues, there will be greater awareness, and increased progress and reform for our seniors.

Thanks for reading,

Rebecca Rauws

 

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05 Aug

Decision-making by an Attorney for Personal Care

Rebecca Rauws Power of Attorney Tags: , , , , , , , , , , , , , 0 Comments

The job of being an attorney for personal care for an incapable person is not an easy one. The attorney often has to make difficult decisions regarding an incapable person’s medical care and treatment, personal care, food, clothing, and shelter. A particularly difficult decision that can arise in the case of older adults is the decision of whether an older incapable person should be placed in a retirement or long-term care home.

I recently came across a decision that considered a personal care attorney’s decision to move his mother, Ann, into a long-term care facility. As set out in Corbet v Corbet, 2020 ONSC 4157, prior to the move, Ann had been living with her personal care attorney’s son (Ann’s grandson), and his spouse. The personal care attorney lived in the USA. The grandson and spouse were the defendants to an action brought by the personal care attorney, and the defendants had brought the motion that was dealt with in the decision. The motion sought an order that Ann return to live with the defendants.

The Corbet decision discussed the powers and duties of an attorney for property, as governed by the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Section 66 of the SDA provides that a personal care attorney must exercise his or her powers and duties diligently and in good faith. If the attorney knows of prior wishes or instructions of an incapable person, they shall make their decision in accordance with those prior wishes or instructions. If the attorney does not know of a prior wish or instruction, or if it is impossible to make the decision in accordance with the wish or instruction, the attorney shall make the decision in the incapable person’s best interests. Although making a determination of what is in the incapable person’s best interests can be difficult, the SDA does set out the factors that the attorney must consider, as follows:

  • the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;
  • the person’s current wishes, if they can be ascertained; and
  • the following factors:
    • (i) Whether the guardian’s decision is likely to,
      • improve the quality of the person’s life,
      • prevent the quality of the person’s life from deteriorating, or
      • reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.
    • (ii) Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.

Ultimately, the court determined that it was not prepared to grant the order sought by the defendants. Some of the factors that were determinative included the following:

  1. Ann had entrusted her only son as her attorney for personal care.
  2. The court should not attempt to micromanage an attorney’s day-to-day handling of an incapable person’s affairs unless there is clear evidence the attorney is not acting in good faith.
  3. Before making the decision to move Ann to the long-term care facility, the attorney consulted with Ann’s family doctor, and had a comprehensive assessment of the defendants’ home done by the LHIN case manager.
  4. Although Ann had expressed that she wanted to “go home”, the court found that Ann perceived her home as the home she had shared with her late husband, and not the defendants’ home.
  5. There was no evidence that the personal care attorney failed to consider the best interests criteria as set out above.
  6. There were allegations that the defendants had mistreated or neglected Ann, and that they had misused or misappropriated her money. As a result, it remained to be determined whether they were “supportive family members” with whom the attorney has a duty to consult under the SDA.

Attorneys for personal care would be well-advised to carefully consider their decisions, in light of the guidelines set out in the SDA, and to document their considerations in making decisions on behalf of an incapable person.

Thanks for reading,

Rebecca Rauws

 

These other blog posts may also be of interest:

07 May

How Important is it to Provide Evidence of Urgency During COVID-19?

Rebecca Rauws Uncategorized Tags: , , , , , , , , , , 0 Comments

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.

Thanks for reading,

Rebecca Rauws

 

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05 May

Are Virtual Wills a Good Idea?

Rebecca Rauws Estate Planning, Wills Tags: , , , , , , , , , , 0 Comments

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.

Thanks for reading,

Rebecca Rauws

 

You may also enjoy these other blog posts:

04 May

What are the Risks of Virtually Witnessing a Will or Power of Attorney?

Rebecca Rauws Estate Planning, Power of Attorney, Wills Tags: , , , , , , , , , , , , , 0 Comments

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!

Rebecca Rauws

 

These other blog posts may also be of interest:

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