Read the transcribed version of "What Happened to My Gift: The Principle of Ademption"
During Hull on Estates Episode #62, Justin de Vries and Megan Connolly discuss the McDougald Estate c. Gooderham case decision of the Ontario Court of Appeal. They discuss what happens when attorneys for property sell assets that have been specifically gifted in a will.
What can a beneficiary do?
Listen to "Powers of Attorney Defined"
Read the transcribed version of "Powers of Attorney Defined"
They define "Power of Attorney", and cover the responsibilities that accompany this role. The steps to take if you decide to revoke your Power of Attorney are also discussed, as well as the regulations of the Substitute Decisions Act which sets out some of the duties involved in Power of Attorney
Listen to "Joint Accounts"
Read the transcribed version of "Joint Accounts"
In Hull on Estates Podcast episode #59, David Smith and Jason Allan discuss the Supreme Court of Canada’s decisions on joint accounts in Pecore v. Pecore, 2007 SCC 17, and Madsen Estate v. Saylor 2007 SCC 18.
These two decisions concern joint bank accounts and the decision of right of survivorship, as well as the question of presumptions resulting trust and advancement.
Perhaps the most difficult issue that arises in power of attorney litigation relates to a determination of the onset of incapacity and the varying degrees of incapacity. These issues have a direct bearing on the nature of the fiduciary obligation of the attorney.
Under the Substitute Decisions Act, an attorney has a higher duty of care (a) if the grantor is incapable of managing property; or (b) if the attorney has reasonable grounds to believe that the grantor is incapable of managing property.
The reality is that there is often no clear determination made that the grantor is incapable. All too often, the Court is left trying to make that determination a considerable period of time after the fact.
Picking up on our discussion of issues encountered in capacity litigation, a common scenario sees the Court asked to make inquiry into the relationship between the grantor and the attorney by a more “distant” sibling or relative (either geographically or otherwise).
Procedurally, in Ontario, leave of the Court must be sought under s. 42(4) of the Substitute Decisions Act to permit the Applicant to make application for an order compelling an attorney under a Power of Attorney for Property to pass his or her accounts.
The test for leave has been characterized in the unreported case of Ali v. Fruci  O.J. No. 1093 as twofold: (i) does the applicant have a genuine interest in the welfare of the grantor of the power of attorney?, and (ii) if leave were to be granted, is a court likely to order a passing of accounts?
Limitation provisions generally aim to strike the appropriate balance between an aggrieved party’s right to seek redress and a potential defendant’s right not to remain under the cloud of litigation indefinitely or to answer for a wrong where it has become difficult, if not impossible, to marshal the evidence.
The case of Webster v. Webster Estate , a recent decision of the Ontario Superior Court of Justice, attracted notoriety in the media, as the Webster family is well known in Montreal and the world of philanthropy. The case is interesting to read given the amount of money at stake and the family dynamics. The case also deals with limitation periods in the estate context. Today, I will discuss the facts. Tomorrow, I will discuss the law and the court’s decision.
The recent decision of the Ontario Superior Court of Justice in the matter of Hutchison v. Hutchison  O.J. No. 3231 (W.A. Jenkins J.) provides an illustration of the court considering the concepts of undue influence and testamentary capacity.
The plaintiffs in this case were three of the four children of the deceased. The defendants were the youngest child, and the child’s wife.
The evidence as considered by the court seriously called into question the capacity of the deceased. By 1996, the deceased was showing early signs of dementia. In 1998, he was found in his car, parked on a railway track. He was disoriented, and was taken to hospital. He was diagnosed as suffering from dementia. While in the hospital, he wandered away, and had to be returned by the police.
Following his diagnosis, he was released from the hospital and lived with the defendants at his home until his death in February, 2002 at the age of 86.
Shortly after his assessment in 1998, the deceased transferred his home to his youngest son. He also transferred his investment account. He then made a new Will wherein he bequeathed the whole of his estate to his youngest son. (In a prior Will, executed in 1992, he divided his estate equally amongst his four children.)
CONTEMPT MOTIONS AND ESTATE LITIGATION – PART V
As I mentioned in yesterday’s blog (November 2, 2006), today’s blog will note several cases wherein contempt motions were brought in respect of passings of accounts.
In Mesesnel (Attorney of) v. Kumer,  O.J.N. 1834 (Ont. S.C.J.), the Court considered a contempt motion arising from allegations that the accounts prepared by a party did not cover the entire accounting period and the accounts prepared were improper.
In this case, prior to the death of Mesesnel, Donald Steward Mills had apparently been a good friend of Mesesnel and also served as Mesesnel’s solicitor and occasional business partner since 1970 and had Power of Attorney over Mesesnel since 1978. An Order was made for the passing of Mills’ accounts. Mills provided some accounting but it was claimed that the accounting was incomplete as it only went back to a certain date (1996) and that it was not submitted in proper court form. The clarity of the Order was a concern. It read:
“4. THIS COURT ORDERS that Donald Stewart Mills provide accounts as required under section 42 of the Act and prepare accounts relating to his management of assets of Mesesnel as required under rule 74, to be provided on or before June 30, 2002 unless otherwise ordered by this court.”
Part V of the Succession Law Reform Act (“SLRA”) provides the legislative framework for claims by a dependent of an estate. It sets out:
(i) who is a dependent;
(ii) what rights a dependant has in relation to the estate;
(iii) the circumstances the court should consider in determining the amount of support that should be awarded; and
(iv) the kinds of orders the court can make for the satisfaction of a dependent support claim.
Rule 60.11 of the Rules of Civil Procedure explicitly states that a party may pursue a contempt motion in order to pursue those who violate court orders other than for the payment of money.
Some have argued that, even in the face of the language of Rule 60.11, support orders involving the payment of money should be enforceable through a contempt proceeding.
In 2000, in its decision of Forrest v. Lacroix Estate (2000) 187 D.L.R. (4th) 280, (Ont. C.A.) the Court of Appeal set aside a contempt order made as a result of a failure to pay a SLRA dependent support award, affirming that Rule 60.11 does not permit contempt orders for the payment of money.
Burden of Proof
Although the procedure for a contempt motion is civil in nature, the actual determination is criminal in nature. Thus, the burden of proof in civil contempt proceedings is proof beyond a reasonable doubt, as apposed to the balance of probabilities. Any doubt must be exercised in favour of the person alleged to be in breach of the order. The burden of proof is the same for both civil or criminal contempt motions, as the sanctions which flow from both forms are criminal/quasi-criminal in nature.
Under Rule 60.11(5) of the Rules of Civil Procedure, a judge, in disposing of a contempt motion, may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt:
a) be imprisoned for such period and on such terms as are just;
b) be imprisoned if the person fails to comply with the term of the Order;
c) pay a fine;
d) do or refrain from doing an act;
e) pay such costs as are just; and
f) comply with any other order that the judge considers necessary,
and may grant leave to issue a writ of sequestration under Rule 60.09 against a person’s property.
The imposition of a sanction, however, is permissive not obligatory. The actual sanction will be dependent on the circumstances of the case and the mitigating/aggravating factors involved. It is clear, however, that judges have a broad discretion to fashion their sanctions.
Although Orders for contempt may be procedurally encumbering, courts will not shy away from the appropriate sanction. For example, in Sussex v. Sylvester, (2002), 62 O.R. (3d) 123 (Ont. S.C.J.), the Court noted that imprisonment was deemed to be an appropriate sanction because in the particular circumstances of the case, paying a fine would have been ineffectual.