Tag: estates and trusts
There are numerous resources available to estates and trusts lawyers to help them navigate their practice during these COVID-19 times. As there does not yet seem to be one amalgamated repository, I thought I would use today’s blog to highlight some sites that I tend to be frequenting:
The Law Society of Ontario
The LSO has created an easy to read list of FAQs. Certain questions that I have found particularly helpful include: the requirements regarding commissioning an affidavit, including affidavits of service; the use of virtual means to identify or verify the identity of a client; whether virtual means can be used to assess a client’s capacity; and, what are the best practices for using video conferencing in providing legal advice or services.
LawPRO is continuing to update avoidaclaim.com. Given that new claims reports continue to come in at pre-crisis numbers, lawyers must remind themselves that although the physical location of their practice may have changed, the level of service provided must not.
Hull & Hull LLP
If you are reading this blog, you are probably already aware of the comprehensive resources being provided by Hull & Hull LLP, which can be found here. If not, we are covering everything from estate planning to estate litigation, including the execution of wills and how to have litigious matters heard by presiding judges.
Ontario Bar Association
The OBA has set up a COVID-19 Action Centre. While helpful information continues to be provided, I find myself continually looking forward to their ‘mindful moments’ which arrive daily in my inbox.
Stay safe and wash your hands,
If you consider this topic interesting, please consider these other related sites:
We often hear of the importance of forging and maintaining good relations with the in-laws. Hence, wishing to keep everyone united, and the spouse happy, we avert our gaze when the one in-law overindulges at the Christmas party, we bite our tongue when another in-law refers to us as “hey, you in the yellow”, and we put on a stiff smile when yet another in-law visits us on our birthday to ask for a loan. In one recent Ontario case, however, we see the grim consequences of having too good a relationship with one’s in-laws.
The cautionary case of Kent v. Kent arose from a legal dispute between the deceased’s son-in-law and her grandchildren. Perhaps unaware of her son-in-law’s inclinations towards insatiability and ingratitude, the deceased left equal shares of her home to the three eventual litigants. By and by, the son-in-law sought a declaration that he was entitled to a much larger share. He argued that since his mother-in-law had registered his late wife as a joint tenant (the transfer was gratuitous), and he and his late wife had moved in a decade after, the house “became their matrimonial home”. He relied upon subsection 26(1) of the Family Law Act:
“If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death.”
The grandchildren countered with the presumption of resulting trust. According to this legal principle, despite legal ownership, property should be returned, or result, to the person who actually paid for the property (the beneficial owner). The presumption can be rebutted if the transferee can show that the transferor intended to gift the property (Pecore v. Pecore).
The Court ruled in favour of the grandchildren, finding that because the transfer was made from a parent to a child, with no consideration, the presumption of resulting trust applied. The son-in-law, who could not muster any evidence in his favour, did not rebut the presumption. The Court also ascribed significance to the Will itself:
“The provisions of the will and transfer made by Marian in July 2015 suggest that she believed that she was the sole owner of the property, and in a position to dispose of it as she did.”
This ruling might provide some comfort to those who have invited their married, adult children to live in their homes. It is a bitter fact, though, that the son-in-law’s conduct can bring no good to the reputation of in-laws, and that if his example is followed, we might see more in-laws receiving bequests of “thirty pieces of silver” or trusts comprised of stockings full of coal.
Thanks for reading!
Suzana Popovic-Montag and Devin McMurtry
As estate litigators with decades of experience, we’ve seen it all when it comes to estate disputes. Our firm has dealt with thousands of cases and family situations. Not surprisingly, we’re often asked if there’s a bulletproof will that’s beyond challenge. Is there a way to guarantee that a will can’t be successfully attacked and your wishes thwarted?
The truth is a simple one: there is no 100% certain solution. However, while you can’t get a coat of armor for your will, you can build some thick layers of protection that can greatly reduce the chances of it being successfully challenged. Here are three ways you can help prevent will disputes:
- Make sure your planning is current
Times change, family situations can change, family wealth can change. In so many cases, a will drafted 20 years ago will not accurately reflect the true wishes of a testator or the true expectations of beneficiaries. But we’ve seen those situations time and time again – and that’s when conflicts occur.
Here’s your first layer of protection: make sure you will and estate plan are up-to-date and reflect your current situation and wishes. It sounds obvious, but it’s a trap many fall into. To get it right, you need advice from a lawyer or advisor with a deep understanding of your assets and your family situation. It’s worth the time, effort, and expense to ensure you capture your current wishes and situation in your planning.
- Talk it out
The most obvious step to take is often the most difficult to execute: talk to your family. Let them know your plans, listen to their concerns, explain your reasons, and adjust your planning as needed to minimize the chances of dispute after you’re gone. Even if you can’t resolve family conflicts entirely, your clear communication of your wishes – and your willingness to listen to the concerns of family members – will go a long way to minimizing a challenge to your will.
- Add a “no contest” clause to your will
This is truly a band aid solution, as it doesn’t address the true cause of conflict or attempt to resolve it. But in cases where you suspect that a challenge to your estate plans will be launched, adding a “no contest” clause to your will can be effective in thwarting it. With a no contest clause, when a beneficiary contests a will, it invalidates their inheritance, and the assets are distributed as though the beneficiary predeceased the testator. Such a clause has typically been upheld as enforceable by courts in Canada. However, there are exceptions, and great care and expert advice is needed when adding this provision to your will.
We discuss a few different angles of these issues in this article and Hull & Hull TV episode: http://www.huffingtonpost.ca/suzana-popovicmontag/family-will-conflict_b_3676914.html
Thank you for reading.
Acting as a Trustee is not only an onerous task but comes with a significant exposure to personal liability.
A trust can be established where three certainties are present: (a) certainty of intention – the Trustee knows that he or she will hold property for the benefit of another; (b) certainty of the subject matter – the property to be held by the Trustee is clearly identified; and (c) certain of objects – the beneficiary of the trust is clearly established.
In Ahmed v. Ibrahim, 2016 ONSC 6430 (ONSC Div. Court), the mother of the plaintiff (Amina) received a settlement payment from a motor vehicle accident. The settlement funds totalling $27,335.03 were deposited into Amal’s bank account. At the time of the deposit, Amal had $19,656.00 in her account. Upon receiving the settlement funds and on Amina’s request, Amal transferred the balance of her bank account (i.e. $46,996.03) to her mother. Amina in turn transferred the funds to a bank account owned by Mohamed (the “Trust Funds”). Believing the Trust Funds belonged to Amina, Mohamed agreed to hold the funds in trust. When Amal demanded her share of the Trust Funds, Mohamed advised that he had already disbursed all of the Trust Funds to Amina in accordance with Amina’s instructions.
Amal sued Mohamed and Amina. At trial, Amina argued that the Trust Funds belonged solely to her and that Amal had no entitlement to the Trust Funds. Amal, however, presented sufficient evidence to show that $19,656.00 of the Trust Funds belonged to her and that none of the funds disbursed by Mohamed had been used for her (Amal’s) benefit. It was Mohamed’s evidence that he believed the Trust Funds belonged solely to Amina and that, in any event, Amina told him the Trust Funds withdrawn by him were used for Amal’s benefit. The judge preferred Amal’s version of the events over Amina and ordered Mohamed, to pay $19,656.00 to Amal.
On appeal Mohamed argued that the trial judge’s decision against him should be reversed because he acted properly in withdrawing the funds, on Amina’s instructions, because he believed the Trust Funds belonged to solely to Amina. In upholding the trial judge’s decision, the Divisional Court held that the trial judge’s findings of fact were owed deference since he had the opportunity to assess the credibility of the parties and accordingly the decision should stand.
This decision is a good example of how easily a trust can be created and a Trustee can attract personal liability even when acting honestly upon mistaken facts.
Thanks for reading and happy Friday!
This week on Hull on Estates, Natalia Angelini and Noah Weisberg discuss the relationship between estate freezes and trusts as considered in Donovan Waters’ article located in the Estates and Trusts Pension Journal.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
Estate Trustees play a critical role in administering an Estate. Their role can give them great decision making power. Yet this power can be abused. A conflict of interest may arise between the Estate Trustee in their role as representing the Estate and their personal interests. This conflict risks favouring their personal interests over the Estate, to which they owe fiduciary obligations. Conflicts of interests, actual or potential, raise significant concerns. An application to remove a trustee may be warranted in circumstances where there are significant allegations made.
The Court in Borisko v Borisko, 2010 ONSC 2670 found it appropriate to grant a removal application where significant allegations aroused the distrust and hostility of the beneficiaries. In doing so, the Court in that decision stated that an application for removing a trustee was not a fact finding process. In its reasons, the Court considered a number of allegations indicating a breach of duty or conflict of interest. The Trustee was alleged to have tried to buy shares from the beneficiaries when he knew they were valued at nearly twice what he offered. He was also alleged to have withheld this information from the beneficiaries. The Trustee was said to have refused to transfer the shares and dividends in a company to the family trust, but instead included the assets in the Estate to increase the Estate’s value and his compensation. These allegations, which were substantiated with evidence, were sufficient for the Court in this case to order the removal of the trustee.
As has been previously blogged, the Court takes such an application very seriously. The Court will prioritize the welfare of the beneficiaries as the governing principle when considering whether to grant such an application. It will also consider whether the administration of the Estate will be delayed should the Estate Trustee remain in office. If the Estate Trustee is named in the Last Will and Testament, this will also be of some importance to the determination of whether to grant the application for removal.
The mechanism for removing an Estate Trustee is by recourse to section 37(1) of the Trustee Act. This section requires that the Court, when removing a trustee, appoint a replacement. The Court may also exercise its inherent jurisdiction to remove the Trustee without appointing a replacement. The authority to do so is confirmed by the Court of Appeal Decision, Evans v Gonder, 2010 ONCA 172 where it was held that no single provision or the Trustee Act, when read as a whole, ousted the inherent equitable jurisdiction of a Superior Court.
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On March 30, 2011, the Family Law Section and Trusts and Estates Section of the Ontario Bar Association are holding a joint event to meet the Province’s new Children’s Lawyer, Ms. Lucy McSweeney. Ms. McSweeney was appointed to the position of Children’s Lawyer for Ontario on September 18, 2010. I understand that Ms. McSweeney’s legal background includes civil litigation, human rights, constitutional and labour law. The Office of the Children’s Lawyer is part of the Ministry of the Attorney General and provides legal services on behalf of children under the age of 18, and in estates, on behalf of the unborn and unascertained, as well.
Ms. McSweeney will address both the Family Law and the Trusts and Estates Sections. This event will allow those in attendance to meet and hear Ms. McSweeney. The program chairs are Dan Goldberg, Senior Counsel, Office of the Children’s Lawyer (Personal Rights) and Susan Stamm, Counsel, Office of the Children’s Lawyer (Property Rights).
For more information, please contact Blossom Pangowish, OBA Sections Co-ordinator, at (416) 869-0513, ext. 399 or at firstname.lastname@example.org.
See you there.
Craig R. Vander Zee – Click here for more information on Craig Vander Zee.
Today’s blog is a continuation of my blogs this week addressing some aspects of preparation for a trial/hearing in a contested passing of accounts. I briefly touch upon transcripts, the Request to Admit and Witnesses today.
It is important in preparing for trial to review the transcripts of the examinations conducted to assist counsel with locating evidence in the transcripts during trial, including admissions and/or inconsistent statements made by a witness at trial, to address the completeness of questions on the examinations, and whether additional discovery is needed before trial.
If a damages brief is to be provided by the opposing party as a result of an undertaking at examinations or otherwise, one can ensure that it has been provided.
A party may also, further to Rule 51.02 of the Rules of Civil Procedure, at any time, by serving a Request to Admit, request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document. A copy of any document mentioned in the Request to Admit shall, where practicable be served with the request (unless a copy is already in the possession of the other party).
The opposing party must respond to the Request to Admit as required by the Rules of Civil Procedure, failing which the opposing party will be deemed to admit the truth of the facts asserted in the Request to Admit or the authenticity of the documents referred to in the Request to Admit.
There may be cost consequences if a party refuses to admit the truth of a fact or authenticate documents which are proven or authenticated during the trial.
Requests to Admit may be effective to: (i) reduce the facts in dispute, (ii) reduce the number of witnesses to be called and/or the examination of a witness, (iii) minimize the costs and length of the trial, and (iv) avoid having to authenticate documents.
With respect to witnesses, amongst other things, it is helpful to make a witness list of anticipated witnesses for each of the parties, prepare a chart of the issues/documents to be proved by each witness and identify and consider the concerns, evidentiary or not, with the evidence and documents to be dealt with by each witness. If the witnesses are experts, the Rules of Civil Procedure have certain requirements. Summons to Witness should also be considered (Rule 53.04) as well as whether an Order excluding witnesses is necessary (Rule 52.06).
Thanks for reading.
Craig R. Vander Zee – Click here for more information on Craig Vander Zee.
After a 5 month trial and 12 days of jury deliberations, Anthony D. Marshall was found guilty of 14 charges, including giving himself a pay-rise of $1 million for managing his mother’s finances. He faces a mandatory sentence from 1 to 25 years behind bars. His sentencing is set for December 8, 2009.
The attorney who did the estate planning for Mrs. Astor was also convicted of forgery charges. Click here to read David Smith’s blog on the attorney’s actions.
The prosecution argued that Mrs. Astor’s Alzheimer’s was advanced so far that she could not understand the complex changes to her 2004 Will or other financial decisions that benefitted her son, such as the $1 million salary.
The defence has argued that Mrs. Astor had lucid moments despite her Alzheimer’s and that she gave her only son control of her estate out of love.
The story does not end there. Mr. Marshall may appeal and the question of what will happen to Mrs. Astor’s $180 million estate has not been resolved. A civil case was postponed pending the resolution of the criminal charges against Mr. Marshall. Some of the charitable beneficiaries of the estate sent observers to the criminal trial and it are not clear how evidence it the criminal trial will impact the civil case.
Whichever Will is eventually probated, Mr. Marshall will receive a large portion of his late mother’s estate.
Diane A. Vieira – Click here for more information on Diane Vieira.
Baseball Hall of Famer, Ted Williams is the news again as a former employee of the cryonics facility in which Williams’ body is preserved is releasing a book detailing alleged mistreatment of Williams’ remains.
By way of background, Williams died in 2002. Within hours of his death, Williams’ body was flown to Alcor Life Extension Foundation in Arizona to be cryonically preserved in hopes of being reanimated in the future. Williams’ head was separated from his body and both preserved separately in liquid nitrogen.
In his 1996 Will, Williams requested to be cremated. However, two of Williams’ children produced a handwritten note signed in 2000 by Williams and themselves stating that they all wanted to be cryonically preserved in hopes of being resuscitated and reunited in the future.
Williams’ eldest child brought proceedings demanding that her father’s body be cremated. Their legal dispute was resolved and Williams remains frozen. Since those legal proceedings, Williams’ son has also died and been cryonically preserved in the same facility.
Alcor Life Extension Foundation, the world’s largest cryonics facility, currently has 88 people preserved and a further 905 signed on for preservation. While cryonics is not specifically prohibited in any province in Canada, British Columbia does have a regulation prohibiting the sale of an arrangement of the preservation or storage of human remains based on cryonics and other processes with the expectation of resuscitation of human remains but does allow a funeral director to prepare a body for cryonics preservation as long as the preparation of the body is in compliance with provincial health regulations and human remains transfer regulations.
Thanks for reading,
Diane A. Vieira – Click here for more information on Diane Vieira.