Once again, I have the pleasure of blogging on the day before the Victoria Day Weekend.
For my third installment, the blog will go, for no particular reason, decidedly darker. In researching for the blog, I came across two terrible Victoria Day tragedies, both with bizarre “Victoria” connections.
(If dark is not your thing this long weekend, please revisit my Victoria Day fun facts. (Although, in reviewing them, many are not so fun, and many are quite tragic.))
Turning to the tragedies:
- In 1881, on Victoria Day (gasp!), the passenger ferry Victoria (gasp again!!) overturned on the Thames River (not THAT Thames River, but the Thames River, Ontario) near London (not THAT London, but London Ontario). The ferry was bringing picnickers back from a nearby park and was significantly overloaded. Many perished. Then-current fashion added to the tragedy. The Victorian-style (gasp!) dresses that many of the female passengers wore became waterlogged and impeded swimming. The tragedy became known as the Victoria Day Disaster. The Victoria was built from the hull of the burned and sunk Enterprise, which caught fire and sank in 1879. To add to the ominousness of the story of the Victoria, the ferry was involved in a minor collision just a year before the disaster, on Victoria Day, 1880.
- In 1896, on Victoria Day (gasp!), in Victoria (gasp again!!), B.C., a streetcar overcrowded with Victoria Day revellers crashed through the Point Ellice Bridge and fell into the Upper Harbour. Many perished. A coroner’s jury later determined that the streetcar operating company was responsible as it allowed the streetcar to be loaded with a weight in excess of what the bridge was designed to support. The city was contributorily negligent because it did not properly maintain the bridge and failed to take steps to restrict traffic on the bridge.
Enough disaster. Enjoy your long weekend. Be safe.
A recent question on Jeopardy! led me to look into the phrase “last will and testament”.
We all know what a will is. It is a legal document that sets out the testator’s wishes with respect to the disposal of his or her property upon his or her death. A testament is the same thing.
Commonly, a will is referred to as a “last will and testament”. Why the apparent redundancy?
The phrase is a historical reference to a period when English law and French law language were both used for maximum clarity. The phrase is a “legal doublet”. Other legal doublets include “cease and desist”, “part and parcel”, “terms and conditions” and “break and enter”. The list goes on and continues.
Diving deeper, the legal doublet “last will and testament” is an “irreversible binomial”: words that must be used together in a certain order. One would never refer to a “testament and last will”, much as one would never refer to “cheese and macaroni”, “abet and aid” or “void and null”.
Another theory as to why we refer to a “last will and testament” is that, historically, a will dealt with real property while a testament dealt with personal property. This theory has been debunked.
Still another theory is that, historically, lawyers and clerks were paid by the word. Why use one word when you can get paid for several?
Thank you for reading. Have a safe long weekend. As a client told me, stay positive and test negative!
Dunn Street is a familiar street in Toronto’s west end, named after John Henry Dunn (1792 – 1854) who was active in business and politics and was Receiver General of Upper Canada. His son, Lieutenant Alexander Roberts Dunn (1833 – 1868) was the first Canadian born recipient of the Victoria Cross. It was awarded for his bravery during the Charge of the Light Brigade on October 25, 1854, during the Battle of Balaclava in the Crimean War. His will was probated in England as recorded in the England and Wales National Probate Calendar, Index of Wills and Administrations, from March 21, 1871. It was granted to Rosa Douglas (Wife of John Douglas, a General in her Majesty’s Army) of 16 Queen Street May Fair in the county of Middlesex, who was named as a beneficiary.
Alexander Roberts Dunn died in 1868 while on Expedition to Abyssinia. He was killed in unusual circumstances and the location of his grave was not known. His grave was eventually found by Canadian Army Forces during their peacekeeping mission to Ethiopia in 1998-2000. “Found” is not entirely accurate, as they were led to his grave by a group of local children who knew they were from Canada. The Victoria Cross is the highest award that was previously awarded to individuals from Commonwealth countries. In 1993 Canada established its own Victoria Cross. Dunn’s Victoria Cross Medal has been kept for many years at Upper Canada College, which he attended. His sword is on display at the Canadian War Museum in Ottawa.
We shall remember them.
The Presidential election is in the news. Any linkage to wills and estate law would appear to be a difficult connection. Yet, the Last Will and Testament of the first President, George Washington, is interesting in several respects.
In his own orderly handwriting, the will shows the wisdom and depth of understanding his unique life experience gave him. It is a well thought out, personal, and intelligently written document, prepared by an obviously brilliant man who has taken caution to be humble. He prepared it on his own, or as he says, “… no professional character has been consulted, or has had any agency in the draught” of the will.
The will appoints executors, provides for the disposition of his estate, the care of his wife, the release of his slaves, charitable donations to orphans, and the support of education, among other testamentary instructions. George Washington was born on February 22, 1732, in Westmoreland County, Virginia, and died on December 14, 1799, at his home in Mount Vernon, Virginia. He had been the first President of the United States from April 30, 1789, to March 4, 1797.
It is interesting that the last paragraph of the will, written more than two hundred years ago, provides for an arbitration process:
“My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants each having the choice of one and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.”
His reference to the Supreme Court of the United States is also noteworthy. The court was created by Article III of the Constitution and was established by the 1st Congress through the Judiciary Act of 1789 consisting of the Chief Justice and five associate justices. The position of Chief Justice is the only position fixed by the Constitution. The number of justices is set by Congress and has been amended many times over more than two hundred and thirty years resulting in the current number of nine.
The complete text of the Last Will and Testament of George Washington can be found on many archival and historic websites. The original is housed in the safe of the Fairfax County Courthouse in Fairfax Virginia. It comprises 29 front and back handwritten pages and an additional 15 pages with a detailed property schedule.
Thank you for reading!
Listen to Guardianship in Canada
This week on Hull on Estate and Succession Planning, Suzana Popovic-Montag speaks with Rodney Hull about how the law has changed in Canada as it pertains to the appointment of guardians. Rodney suggests that today’s laws (post-1994) are clearer than they were in the past.
If you have any comments, send us an email at email@example.com or leave a comment on our blog.
As a WWII pay officer in the Canadian military, my paternal grandfather met a British woman on the beach when he was stationed in the south of England. They married soon after the War and retired in England in the mid-1960s. My grandfather died in the early 1990s; when my step-grandmother, Tessa, died in 2008, in her Will she left her house to my father and aunt.
If there were no Will, Tessa’s estate could have contributed to the British government’s coffers. In that circumstance, a probate research firm could have played a role.
Title Research is one of the firms highlighted in yesterdays blog about "heir hunters". Its services include: searches for missing beneficiaries, heirs, and legal documents (such as marriage, birth and death certificates back to the 1800s); asset research to value, verify and find missing or unknown assets; missing beneficiary indemnity insurance; probate valuations; and will searches to determine that the Will is the deceased’s last will.
If Tessa had died intestate, Title Research, and other firms, could have located her heirs around the world. Alternatively, if the estate trustee had questions about the value of the estate assets, or had the trustee not known the whereabouts of the beneficiaries, it could have enlisted a search firm’s services as some anecdotes suggest.
Potentially trustees can protect their personal liability by engaging a firm that has a best practices endorsement of Britain’s Law Society. It seems that an estate need not just have ties to the UK, but the extent of a firm’s expertise in a specific jurisdiction would have to be assessed.
Interestingly, some of the detective work can be done by amateur sleuths: www.findmypast.com and www.ancestry.co.uk allow access to census data from the 1800s and a host of other historical information. If genealogy is in your blood, it’s a place to start. And, as one UK law firm suggests, it might be advisable to do some of your own investigating.
In Scotland for my honeymoon, I encountered a few different “estates”. Hiking the West Highland Way – averaging about 12 miles a day – we passed Blackmount Lodge, in the Bridge of Orchy. The lodge, owned by the Fleming family (of James Bond fame) sits on the edge of an idyllic loch. It took a day to walk across the estate.
Fellow walkers from Britain were interested to learn that I work in estate litigation. After sorting out differences in our terminology, they asked if “heir hunters” exist in Canada. I was intrigued.
While I still do not know the extent of “heir hunting” here, I learned that Heir Hunters is a BBC series that follows probate detectives who look for distant relatives of people who have died without making a will. I have not heard of a similar program in North America.
Several UK firms track down missing relatives: Fraser and Fraser and Title Research are two examples. About 545,000 people die in Britain every year and half of them do not have a will. As in Ontario, there are rules in Britain which dictate that when people die intestate, their estate passes to the deceased’s legal next of kin. In Britain, if there is no family, the estate falls to the Crown. The Guardian claims that £10 million to £20 million falls to the government every year because there is no one to claim the estate. Heir hunters locate the next of kin and alert them to their inheritance; there is a finder’s fee of up to 25% of the amount.
Many people in Canada can trace their roots to the United Kingdom. Estate practitioners, if advising estate trustees, would be well served to keep “heir hunting” firms in mind.
Thank you for reading. Enjoy your day.
The contemporary attitude is that we live in a young country. True in some respects. Yet we own the oldest contiguous institutions. Trusts are one aspect of this venerable inheritance: the trust is as old as the Common Law. Actually, a little older in some respects: the English trust finds its roots in the 12th century.
It all started when a few knights returned from their crusades to find that the "friends" to whom they had entrusted management of their feudal lands refused to return said lands. There was no mechanism at law to force the new untrustworthy owners to return the land so the law courts could do nothing.
Naturally, the irate knights went to the Lord Chancellor and "asked" for justice. One can imagine the scene: the silk-gowned Lord Chancellor looking down at the length of his shoe, then up at a selection of battle-worn armored thugs with gauntlets tapping hilts on chipped swords, over at the foppish, yawning new land-holder, then down again at the length of his shoe. Unsurprisingly, the knights who had nothing else to live for continually won in the Courts of the Chancellory and the concept of trustees and beneficiaries was born. I wager that trial by ordeal would have reached similar results so this must have been fate at work.
Tomorrow some interesting case law, I promise.