Tag: Hull on Estates

16 Oct

Hull on Estates #557 – Milne Estate and the Validity of Multiple Wills

76admin Estate & Trust, Estate Planning, Hull on Estates, Podcasts, Wills Tags: , , , , , , , , , 0 Comments

In today’s podcast, Paul Trudelle and Sayuri Kagami discuss the recent decision of Re Milne Estate, 2018 ONSC 4174, where Justice Dunphy of the Ontario Superior Court found a Will to be invalid where it provided the Estate Trustee with the discretion to determine whether assets might fall under the Will or not. At the time of recording, it was unknown whether the decision would be appealed. It is now confirmed that the decision is under appeal.

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21 Aug

Hull on Estates #553 – Who is the Children’s Lawyer?

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , , , , , 0 Comments

This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the role of the Children’s Lawyer in Ontario and the recent decision of the Ontario Court of Appeal in Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner).

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10 Jul

Hull on Estates #550 – Damages in Passing of Accounts of Attorneys for Property

76admin Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , , 0 Comments

In today’s podcast, Stuart Clark and Sayuri Kagami discuss the issue of whether damages can be claimed on a passing of an attorney for property’s accounts in light of the fact that section 49(3) of the Estates Act, RSO 1990, c E21 only refers to the ability of a Judge to award damages against an executor, administrator, or trustee, not an attorney for property, in such proceedings. To read about this issue, see Stuart Clark’s recent blog on this topic.

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28 Jun

Contextualizing Capacity: The ‘Who’, ‘What’ and ‘When’ of Decision-Making

Garrett Horrocks Capacity, Estate Planning, Guardianship Tags: , , , , 0 Comments

Capacity is a fundamental consideration in many aspects of estate, trust, and attorneyship litigation.  The capacity of an individual to take a particular legal step, for example, to effect a distribution of property or to make a valid testamentary document, will often form the basis of a claim or court application.  However, as set out in today’s blog, capacity is specific as to task, time, and situation.  Context is a key factor in assessing capacity or lack thereof.

Capacity is specific as to task, time, and situation.

Whether an individual will be found to be capable of taking a particular legal step depends on the nature of the step being taken and when this step was taken.  By way of example, the threshold for the capacity required by a testator to execute a valid Last Will and Testament differs from, and is considerably higher than, the threshold of an individual seeking to grant a power of attorney for property or personal care.

The capacity to make a valid will requires an individual to have a clear understanding of the nature and extent of their assets, and to understand the effects of the dispositions being made including any claims that might arise as a result.  The capacity to grant a power of attorney for property, while similar to testamentary capacity, is a lower threshold.  An individual will be capable of granting a power of attorney for property provided that,

  1. they have a general understanding of the nature and value of their property;
  2. are aware of the obligations owed to any of their dependants; and
  3. understand the nature of the rights being given to the attorney as well as the rights that they retain as the grantor of the power of attorney, for example, the right to revoke the power of attorney if capable.

While the capacity to grant a power of attorney for property only requires the grantor to have a general understanding of their property or their obligations, testamentary capacity requires specific knowledge and appreciation of potential legal ramifications.  Accordingly, an assessment of an individual’s capacity in each respect will impart different requirements.

Capacity is also specific as to time, particularly as an individual’s capacity may fluctuate depending on illness or circumstance.  While somewhat uncommon in practice, an individual who was previously assessed as incapable may subsequently regain the capacity to take a particular legal step.  Accordingly, when acting on behalf of an individual challenging the validity of a testamentary document or disposition of property, it is important to consider not only the grantor’s historical capacity or lack thereof, but also whether capacity may have been regained at some point prior to the disposition being challenged.

Thanks for reading.

Garrett Horrocks

21 Jun

The Great Irony: Testamentary Intent and Intestate Succession in Eissmann v Kunz

Garrett Horrocks Estate & Trust, Estate Planning, Executors and Trustees, Litigation, Wills Tags: , , , , 0 Comments

Testamentary freedom is a core tenet of estate planning in Ontario.  In general, testators are at liberty to set up their estate plan to include or exclude whomever they wish.  Where part or all of a testator’s estate plan fails as a result of an intestacy, Ontario’s Succession Law Reform Act (the “SLRA”) steps in to provide the parties who will benefit as a result.  Occasionally, the principles of testamentary freedom and intention and the laws of intestacy intersect in peculiar ways.  This intersection came to a head in the Eissmann v Kunz (2018 ONSC 3650) decision.

In Kunz, the testator, Siegfried Kunz, died leaving no fewer than four testamentary documents purporting to be wills, briefly summarized as follows:

  1. A will drawn in 1967, which divided Mr. Kunz’s estate between his wife and their daughter, Petra;

 

  1. A will drawn in 1982 in Mr. Kunz’s handwriting, which stated that the “beneficiary after [his] death is Petra”;

 

  1. A will drawn in 2000, again in Mr. Kunz’s handwriting, which purported to modify the 1967 will and listed a number of specific legacies to various beneficiaries. Mr. Kunz appears to have later written over the original bequests to increase the amount of each.  Petra was once again listed as the sole residuary beneficiary; and

 

  1. A will drawn in 2009, also in Mr. Kunz’s handwriting, which provided that Petra would “not receive a single Euro of out [the] Estate.” In the margin of the 2009 will, Mr. Kunz expressly indicated that the 2009 will was to be an “amendment” to the 2000 will.

The Court was first tasked with determining which will was to govern.  The Court concluded that the 2000 will was a valid holograph will, though noted that the subsequent handwritten amendments were of no force and effect as they did not comply with the formal requirements for valid alterations under the SLRA.  The Court concluded that the 2009 will operated instead as a codicil to the 2000 will as it did not dispose of any property on its face and, therefore, could not function as a standalone will.

The interplay between the 2000 will and the 2009 codicil is such that a conflict arose with respect to the disposition of the residue of Mr. Kunz’s estate.  The 2000 will names Petra as the sole residuary beneficiary.  The 2009 will revokes Petra’s interest entirely.  The 2009 codicil therefore created a partial intestacy with respect to the residue of Mr. Kunz’s estate, and the Court looked to the SLRA to determine who would inherit.

The hierarchy of beneficiaries on an intestacy is set out in Part II of the SLRA.  Mr. Kunz died leaving no surviving spouse, and so the next intestate beneficiaries were to be his children, that is, Petra.  In an ironic twist of fate, the Court concluded that Petra was solely entitled to all of the residue of Mr. Kunz’s estate, notwithstanding that he had intended to expressly disinherit her under the 2009 codicil.  The Court declined to give effect to Mr. Kunz’s apparent intention to exclude Petra.

Simple estate planning steps, such as the appointment of an alternate beneficiary under the 2009 will, could have prevented this great irony.  Ensure the effects of your testamentary dispositions are properly understood by taking time to review your will with a lawyer.

Thanks for reading.

Garrett Horrocks

12 Jun

Hull on Estates #548 – Four Corners versus Armchair

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In today’s podcast, Jonathon Kappy and Kira Domratchev discuss the British Columbia Court of Appeal decision of Killam v Killam (2018) BCCA 64, and the “four corners” approach versus the “armchair” approach in interpreting the testator’s intention.

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29 May

Hull on Estates #547 – Test for Mutual Wills

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This week on Hull on Estates, Paul Trudelle and Doreen So discuss the test for mutual wills in the decision of Rammage v. Estate of Roussel.

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Click here for more information on Paul Trudelle.

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15 May

Hull on Estates #546 – Attorneyship planning options

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This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss attorneyship planning options and the importance of full consideration of what may seem like basic options in protecting the interests of clients during periods of mental incapacity.

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Click here for more information on Natalia Angelini.

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13 Apr

Achieving Medically Assisted Death

Paul Emile Trudelle Elder Law, Ethical Issues, Health / Medical, In the News, Public Policy, Uncategorized Tags: , , , 0 Comments

Section 241.1 of the Criminal Code sets out a detailed procedure for determining when medical assistance in dying can be provided. However, the medical and legal communities are still grappling with the application of the provisions.

In A.B. v. Canada (Attorney General), 2017 ONSC 3759 (CanLII), two physicians concluded that AB met the criteria for a medically assisted death. A third doctor, however, did not, as he felt that AB did not meet the Criminal Code requirement that a natural death was reasonably foreseeable. Although only two medical opinions are required, the opinion of the third doctor had a chilling effect on one of the other physicians, who declined to provide assistance to AB for fear of being charged with murder.

AB then applied to court for a determination that she met the requirements of the Criminal Code, and a declaration that she may receive medical assistance in dying.

Justice Perell, who had previously considered the issue of assisted death in another proceeding, heard the application.

Ontario and Canada took the position that a declaration should not issue, as the regime established by the Criminal Code does not require judicial pre-authorization. Further, the civil courts should not issue a declaration as such a declaration would interfere with the prosecutorial discretion of the Crown by predetermining criminal liability.

Justice Perell agreed with the position of Ontario and Canada. However, he felt that their position was “as unhelpful as it is technically correct.” The practical effect of such a position was that AB qualified for medically assisted death, but no physician was prepared to assist.

In his decision, Perell J. thoroughly reviews the legislative history of medical assistance in dying. He agrees that it is the medical practitioner and not the court that is to decide whether the Criminal Code criteria are satisfied. He agrees that the court cannot make the decision for them.

However, Perell J. expresses that some form of declaration would be “useful” and have “utility”.

Perell J. walks a fine line in his decision. He accepts that the court is not to make declarations that the Criminal Code criteria for assisted death are met: that must be done by the medical practitioner or nurse practitioner: s. 241.2(3)(a). What Perell J. does, however, is attempt to clarify what is meant by s. 241.(2)(d): the provision that requires the person to meet the criteria that “their natural death has become reasonably foreseeable”. As a matter of statutory interpretation, he declares that in AB’s case, AB’s natural death is reasonably foreseeable.

Perell J. cautions that in making a declaration, he is not conferring immunity on the physicians from prosecution. He also states that he is not finding that courts could or should grant pre-approvals for persons seeking medical assistance in dying. It is unclear as to whether this will provide much comfort to medical practitioners.

Thank you for reading.

Paul Trudelle

29 Mar

Predatory Marriages: knowing what it means to say “I do.”

Garrett Horrocks Capacity, Common Law Spouses, Elder Law, Ethical Issues, General Interest, Health / Medical, In the News, Public Policy Tags: , , , , , 0 Comments

The interplay between evolving social norms and the legal foundations that predate or accelerate these changes has seen significant development in the last decade.  Courts of law and of public opinion have made important strides in shaping  social policy in many areas, such as medically-assisted death, gender diversity and inclusion, and marriage rights, to name a few.  A recent case out of the Ontario Superior Court of Justice considered this last issue, marriage rights, with a particular focus on predatory marriages.

A person has the capacity to enter into a marriage contract only if that person has the capacity to understand the duties and obligations created

In Hunt v Worrod, 2017 ONSC 7397, the Court was tasked with assessing whether an individual who had suffered a catastrophic brain injury possessed the necessary capacity to marry.  In 2011, Kevin Hunt suffered a serious head injury following an ATV accident and spent four months recuperating in hospital.  He was eventually discharged into the care of his two sons, but three days after his release, Mr. Hunt was whisked away by his on-and-off girlfriend, Kathleen Worrod, to be ostensibly married at a secret wedding ceremony.

Mr. Hunt’s children brought an application to the Court on his behalf to void the marriage, partly to preclude Ms. Worrod from accruing spousal rights to share in Mr. Hunt’s property or assets.  Ultimately, the Court concluded that Mr. Hunt did not possess the requisite capacity to enter into the marriage.

In its reasons, the Court relied heavily on the opinions of several expert witnesses and the existing body of legal authority.  The Court began by reviewing section 7 of Ontario’s Marriage Act, which provides that an officiant shall not “solemnize the marriage” of any person that the officiant has reasonable grounds to believe “lacks mental capacity to marry.”

The expert evidence tendered by the parties suggested that Mr. Hunt had significant impairments in his ability to make decisions, to engage in routine problem-solving, and to organize and carry out simple tasks.  He was characterized as “significantly cognitively impaired”, and was assessed as being incapable of managing his property, personal care, or safety and well-being.

The Court subsequently relied on the test for capacity to enter into a marriage contract established by the British Columbia Supreme Court in Ross-Scott v Potvin in 2014.  The Court held that a person has the capacity to enter into a marriage contract only if that person has the capacity to understand the duties and obligations created by marriage and the nature of the commitment more generally.

The Court also identified the tension between balancing Mr. Hunt’s autonomy as against the possibility that he lacked the capacity to appreciate the legal and social consequences of marriage.  Ultimately, the Court was satisfied that Mr. Hunt’s children had met their burden of demonstrating that their father lacked the necessary capacity to marry Ms. Worrod.  The marriage was declared void ab initio, and the attendant spousal property rights that would have otherwise flowed to Ms. Worrod were lost.

Thanks for reading.

Garrett Horrocks

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