Tag: estates and trust
My blogs over the next three days will touch upon certain aspects of preparation for the hearing of a contested passing of accounts. Today’s blog will relate to the parties, the scheduling of the hearing, and the preparation of documents/productions for trial.
The issue of whether all of the parties who ought to be involved in the passing are involved, and, if so, whether any of the parties who do not have representation need representation, must be considered. In considering who the appropriate parties are, or should be, the following questions might be asked: Are there self-represented parties? Have they been notified of all matters related to the proceeding? Has any party filed a Notice of No Objection to the accounts? Has anyone filed a Statement of Submission of Rights (if so, have they been served by the applicant/plaintiff with written notice of the time and place of the hearing)? Is a minor involved (Rule 7.03(2), The Office of the Children’s Lawyer)? Is there an adult party who is disabled (Rule 7, The Office of the Public Guardian and Trustee)? Is a representation Order necessary (Rule 10)?
Regarding the scheduling of the hearing, an order of the Court for directions, or otherwise, at any pre-trial stage, or at the pre-trial conference might address same. It may be that the date of the trial, fixed in its length, is to be fixed by the Registrar on a date mutually convenient to the parties. If, on the other hand, the proceeding is to be set down for trial further to Rule 48 of the Rules of Civil Procedure, that Ruleallows for the proceeding to be set down for trial after the close of pleadings and when a party is ready for trial. In any case, inquiries might be made with the Court office where the trial is to take place to determine what, if any, forms need to be filed with the Court to confirm that the trial is to proceed.
Regarding the preparation of documents/productions for trial, it is critical that the documents in respect of the proceeding be organized prior to trial. If the documents necessary for the trial are not in counsel’s possession when preparing for trial, for whatever reason, they should be obtained prior to trial. Such documents include, but are not limited to, all pleadings, the estate accounts, certificate of appointment, prior Judgments for passing of accounts, all Orders regarding the passing of accounts, all Notices of Objections (and withdrawals), Statements of Submission of Rights, Consents/Releases of any party, Affidavits of Service, and the documents exchanged between the parties as a result of the Rules of Civil Procedure, any agreement of the parties, and/or Court Order.
Issues of privilege regarding the documents should also be dealt with prior to trial, if possible.
Thanks for reading.
Craig R. Vander Zee – Click here for more information on Craig Vander Zee.
Welcome to my week of blogs.
The perennial problem of a lost or destroyed will is not new. Much law has been written and effort spent on the subject. I am also counsel in a lost will proceeding that is a real bugaboo. I therefore thought that it would be worthwhile to cover off the basics.
In terms of procedure, Rule 75.01 states that the validity and contents of a will that has been lost or destroyed may be proven on an application by affidavit evidence, without appearance, where all persons who have a financial interest in the estate consent to the proof. Where consent proves fleeting, the court may give directions under Rule 75.06. Rule 75.06 states that any person who appears to have a financial interest in an estate may apply for directions as to the procedure for bringing any matter before the court (including proving a lost or destroyed will).
With respect to the substantive law, when a will has been shown to be last in the custody of the testator and cannot be found at his/her death, a presumption arises automatically that the testator destroyed the will with the intention of revoking it (animo revocandi). The presumption can be rebutted on sufficient evidence. Suspicions alone are not enough to rebut the presumption; the presumption must be rebutted by facts.
The presumption will be more or less strong according to the control the testator had over the will, the character of the testator and his relation to the beneficiaries, the contents of the testamentary document, and the possibility of its loss being accounted for otherwise than by intentional destruction on the part of the testator. Only in very strong cases have the courts permitted the presumption to be rebutted. The courts have emphasized that the burden on the person who is trying to rebut the presumption is "very heavy". For a good summary of the law, see Wagenhoffer v. Wagenhoffer Estate,  S.J. No. 8 (Sask. C.A.) [link not available].
The son of the notorious Nazi criminal Aribert Heim wants his father declared dead so that he and his siblings can manage his father’s assets. Aribert Heim fled Germany in 1962 when a warrant was issued for his arrest. The Simon Wiesenthal Centre has been tracking him since that time but has never captured him.
In 1997, the son and his sister discovered a German bank account in their father’s name containing 1.78 million dollars. The German government froze the bank account. The son says that if his father is declared dead and he inherits money from his father, he will donate it to the study of the Mauthausen concentration camp.
His son insists that he has not see his father since 1962 and has had no contact with him since that time with the exception of receiving two unsigned notes in 1962 and 1967. His father would turn 94 this year and he assumes that he is likely dead. However, throughout the last four decades Aribert Heim has been spotted numerous times and as late as last month; the Simon Wiesenthal Centre believed that they have found evidence of him living in Chile. The son says that he is working with a lawyer to provide evidence of his father’s death.
In Canada, the court is authorized by the Declarations of Death Act to determine whether a person is dead on the basis of circumstantial evidence or the rule of common law which presumes a person dead after an unexplained absence of seven years or more. Click here to listen to a podcast on the Declaration of Death Act and the Absentee Act. Additionally, under the Rules of Civil Procedure, an interested party can also apply for the opinion, advice, and direction of the court.
Thanks for reading,
Anne Werker recently brought an interesting case to my attention. In Rooney Estate v. Stewart Estate, the solicitor who performed the executor’s duties attempted to rely on a release signed by a beneficiary in his response to an application that he pass accounts in his capacity as de facto trustee.
Pierce J. held that in order for a release to be enforced, the beneficiary who signs the release:
1. must be “fully informed”;
2. must have received competent legal advice in a review of the accounts;
3. should understand how compensation has been charged; and
4. should know what legal services have been provided and what the fees were.
Pierce J. also held that a distribution cannot be withheld pending the execution of a release. It is simply fiction for an executor to believe that he/she can refuse to distribute the estate until a signed release is in hand. A holdback must be reasonable and demonstrably justifiable in the circumstances (i.e. tax liability or the costs of a passing).
However, in the end, some common sense must prevail. In a simple administration, it is unlikely that formal accounts will be prepared for passing either because no compensation is claimed or the costs of doing so are prohibitive. However, the executor will likely ask for a release on the distribution of the estate. In that case, transparency may be the answer. By communicating regularly with the beneficiaries, sending them pertinent information and updates, and/or preparing an informal accounting (including how compensation has been taken), a court may just be convinced that a signed release is good enough.
 2007 WL3019262 (Ont. S.C.J.), 2007 CarswellOnt 650
Welcome to my week of blogs.
Tax season is once again upon us with all of its attendant trepidation. No doubt, a general panic has set in as people gather together the necessary documentation to fill out and file their tax returns.
Anybody who has been an estate trustee will know that he/she is responsible to prepare and file a terminal tax return and to ensure that any outstanding taxes are paid on time. To help cut through the confusion, I thought it worthwhile to set out some of the income/deduction tax receipts that an estate trustee may come across when preparing a tax return:
Ø T4 Employment Income
Ø T4A Pension/Annuity Benefits, Canada Pension Plan Benefits
Ø T4A(OAS) Old Age Security Benefits
Ø T4RIF Registered Retirement Income Fund Withdrawals
Ø T4RSP Registered Saving Plan Withdrawals
Ø T4PS Contributions by a Company to Profit Sharing Plan
Ø T600 Cash Canada Savings Bonds
Ø T4E Employment Insurance Benefits
Ø T5 Investment Income
Ø T3 Trust Income (including mutual funds and income trusts)
Ø T5008 Statement of Securities Transactions
Ø T5013 Statement of Partnership Income
Ø T2200 Declaration of Conditions of Employment
Ø T2201 Disability Tax Credit (completed by a doctor)
Ø T2202 Tuition/Education Deduction Certificate
Ø T101 Statement of Renounced Resource Expense
Ø T5006 Labour Sponsored Tax Fund Credit, RRSP Contribution, Union and Other Professional Dues, Medical or Attendant Care Expenses, Charitable Donations, Political Donations, etc.
Thank you for reading, Justin.
Listen to Applying for Probate
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the applying for probate. They discuss some of the ways that estate administrators can simplify the process.
As both litigant and counsel know, the cost of litigation is often prohibitive and institutional delays are not uncommon (there never seems to be enough judges to go around). I therefore took some time to read the long-awaited Report of the Ontario Civil Justice Reform Project, which was released in November 2007. Coulter Osborne was appointed in 2006 to lead the Project. Mr. Osborne is a widely respected, retired judge of the Court of Appeal and the Province’s Integrity Commissioner. The Report can be found on-line at http://www.attorneygeneral.jus.gov.on.ca/
Mr. Osborne reviewed potential areas of reform and made recommendations to make the civil justice system more accessible and affordable. A variety of organizations and individuals made submissions, including the OBA. Some of Mr. Osborne’s recommendations are bold and certainly worth considering:
- Additional Superior Court judicial resources in Brampton, Hamilton, Newmarket and Toronto and more judges generally;
- Increase the monetary jurisdiction of the Small Claims Court to $25,000 with no right of appeal from a judgment of less than $1,500;
- Increase the monetary jurisdiction for Simplified Procedural actions to $100,000;
- Amend Rule 20 to allow the court to weigh evidence, evaluate credibility and draw any reasonable inference from the evidence. This power, however, ought not to be exercised where the interests of justice require that the issue be determined at trial;
- Encouraged lawyers to consider new and innovative billing methods that promote access to justice for litigants with civil litigation issues who wouldn’t otherwise be able to afford counsel;
- Amend Rule 31 to provide that each party has up to a maximum of one day (7 hours) to examine parties adverse in interest subject to agreement otherwise or a court order;
- Law Commission of Ontario to review of the role of the Divisional Court as a court of intermediate appellant jurisdiction and make recommendations regarding the Court’s future role in jurisdiction.
It will be interesting to see how the Report fares and what recommendations are implemented.
Thanks for reading, Justin
Welcome to my week of blogs. I hope you enjoy the eclectic mix of topics and issues that I will blog on this week.
I recently came across a case that considered the doctrine of abuse of process. While it was a family law dispute, the case nevertheless caught my attention as abuse of process cuts across all areas of the law, including estate litigation.
The Supreme Court of Canada had this to say about abuse of process:
The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.
As can be seen from the above passage, the focus of the abuse of process doctrine is on the integrity of the judicial process and not on the motive, however dishonourable, or status of the parties.
In the context of estate litigation, where emotions are often raw and grievances long held, a party to an action cannot be blinded by perceived motives when considering whether to strike a claim as an abuse of process.
The best way to approach abuse of process is to consider claims that the court has held to be an abuse of process. A good example is where a party re-litigates a claim, however disguised, solely to achieve a more favourable judicial result or harass the other side. Such a case is both manifestly unfair to the defendant as well as bringing the administration of justice into disrepute.
The real attraction of the doctrine of abuse of process is its flexibility and the latitude it provides the court in its application. However, as with all procedural or early motions, it is often a difficult case to meet. The facts must be clear in order to successfully argue that a claim should be struck as an abuse of process.
In Hughes v Miller, the female plaintiff and the male defendant were never married but lived together in a spousal-type relationship for about 12 years. They originally lived on the defendant’s boat until 1993 before moving to an island. The agreement and expectation of the parties was that they would be equal owners of the island property. While the purchase money for the island property was put up by the plaintiff and her mother, the defendant’s contribution was to be in the way of material and expertise in building a permanent home on the property. However, the defendant only built a very basic cabin.
In 1995, the defendant inherited property from his aunt. The plaintiff helped pay property taxes on the inherited property. Furthermore, as the defendant became ill in 1999, he ultimately contributed less to the parties’ expenses.
The plaintiff sought a declaration of a constructive trust over the inherited property based on unjust enrichment. The plaintiff claimed she supported the defendant over the course of many years and that her financial contribution to the defendant enabled him, among other things, to pay taxes on the inherited property. Alternatively, she sought monetary compensation for the defendant’s enrichment.
The defining feature of the case is that the inherited property came to the defendant by way of an inheritance. As noted by the British Columbia Court of Appeal, the case was different from the majority of cases where the parties lived together and jointly built up assets over many years. If, in fact, the plaintiff was entitled to any trust claim to the inherited property, such a claim would derive from what she did after the defendant inherited it.
However, the court found that it would not be appropriate to award the plaintiff a constructive trust remedy over the inherited property, having regard to her relatively sparse direct contributions to maintaining or improving the property after the defendant inherited it. A constructive trust is the appropriate remedy for unjust enrichment only where a monetary award is insufficient and where there has been a direct contribution to the property by the party seeking such a remedy.
According to the court, spouse-like care and assistance, some personal and some financial, entitled the plaintiff to a monetary award based on unjust enrichment. In the circumstances, the court felt that an award to the plaintiff of one-third of the value of the property accruing to the defendant was fair.
One of my partners likes to point out that we are in the “business of death”. The phrase is a bit morose, but probably accurate. One of the things we therefore do around here is look at the daily Globe & Mail obituaries. Many estate practitioners scan the obituaries in their local newspaper to see whether a client has passed away. From a professional point of view, if a lawyer was named as estate trustee because he/she drafted the Will, they take on fiduciary obligations.
In any event, I try to approach obituaries with a positive spin. I often read an obituary with admiration for the remarkable life lived. Most of the obituaries I read canvass the lives of a generation that is often called the “greatest generation”. Many of the people I read about survived the depression as children or young adults and lived through World War II with all its agony, grief and sacrifice. They greeted the prosperity of the 1950s with relief after a long war, witnessed and ultimately embraced the social revolution of the 1960s, raised successful children (baby boomers) who themselves are changing the face of Canadian society. The greatest generation is, in fact, a testament to what can be accomplished when hard work, sacrifice and compassion are brought to bear.
It was along these lines that I read with interest the recent passing of Anna Marie De Sousa. Mrs. De Sousa, along with her husband, was a shining star when it came to charitable fundraising in Toronto. She was the founder of the Brazilian Ball, a wild extravaganza held every year to raise money for charity (the recipient changes every year). I never met Mrs. De Sousa, but I certainly read about her in the newspaper and the success that her Brazilian Ball ultimately came to represent. The glittering elite of Toronto would come out to watch scantily clad Brazilian dancers and raise millions of dollars for a good cause. No doubt, there will be follow-up tributes to her life in more detail than the obituary that recently appeared in the Globe & Mail. However, she is an inspiration to many of us. Much can be accomplished in life if we set out mind to it. She made Toronto a better place and there are many others who strive to do the same.