Tag: Hull on Estates
“Can a romantic partner – even one in an apparently close and loving relationship for several years – make a claim for dependant relief without establishing that she actually lived together with the deceased for at least three years?”
This was the question raised in the recent decision of Stajduhar v. Kerzner Estate, 2017 ONSC 4954.
Spoiler alert: the answer is no.
As reported in the decision, the deceased died on December 31, 2016. The deceased died leaving a Will made three years after the relationship was alleged to have commenced, which did not provide for the claimant. The deceased’s estate passed to his two children from a prior marriage.
The main issue in the proceeding was whether the claimant met the definition of “spouse” set out in the Succession Law Reform Act. The definition incorporates the definition of “spouse” from the Family Law Act, s. 29. There, “spouse” is defined as including “either of two persons who are not married to each other and have cohabited … continuously for a period of not less than three years”. “Cohabit” is defined in the SLRA as meaning “to live together in a conjugal relationship, whether inside or outside marriage”.
The respondents disputed whether the claimant and the deceased lived together continuously for the required three year period. They maintained separate residences. Although this is not conclusive, and parties can have separate residences and still be found to be spouses, the case states that “living together implies something more than having conjugal relations, spending time together or doing so for a long time.”
The claimant was unable to provide sufficient corroborated evidence to support a finding that she lived together with the deceased for the requisite period. The court concluded that “The evidence simply fails to establish the core and necessary fact that [the claimant] and [the deceased] lived together in any arrangement capable of being so described. They needn’t have had a single residence. They needn’t have never been apart. There must however be evidence of an arrangement that, viewed as a whole, can fairly be described as “living together”. Such evidence should be capable of some objective verification and not rely almost entirely upon self-serving general statements of conclusion.”
The application was dismissed with costs. Although the estate trustee incurred costs of over $75,000, they agreed to limit costs to $25,000. The claimant unsuccessfully tried to oppose these costs on the basis of impecuniosity.
Thank you for reading.
Today on Hull on Estates, Ian Hull and Noah Weisberg discuss quantum meruit claims and the decision in Tarantino v. Galvano.
Pauline Palmer died on June 24, 2016 in British Columbia. She left a Will dated August 18, 1988. The Will left her estate to her cousin. The cousin predeceased Ms. Palmer. Her estate would therefore pass to her next of kin, being her 6 nieces and nephews.
However, at some point, Ms. Palmer made changes to her Will. She changed the estate trustee to a second cousin, Allen Homeniuk, and deleted the name of the cousin, inserting wording that would seem to give the estate to Allen. Some of the changes were in blue ink, and some in black ink. The changes were not signed, but were initialled.
The handwritten changes did not comply with the formal requirements for altering a Will under B.C.’s Wills, Estates and Succession Act (“WESA”). Allen moved for an order to cure the deficiencies under the curative provisions of the WESA. In particular, s. 58 allows a court to give effect to changes made that do not comply with the formal requirements. In considering the question of whether to allow the change notwithstanding noncompliance, the court will inquire into:
- whether the document in question is authentic;
- whether the document represents the deceased’s intentions;
- whether the document records a deliberate or fixed and final expression of the intentions of the deceased.
B.C. courts have noted that their curative power is inevitably and intensely fact-sensitive. The burden of proof is on a balance of probabilities. Factors relevant to finding a fixed and final expression of intention include the presence or absence of a signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document.
Allen’s application to validate the changes was opposed by some of the nephews. They argued that the changes were not a deliberate or fixed and final expression of Ms. Palmer’s intentions, but rather, “simply the musings of an aging lady”.
In its decision reported at Estate of Palmer, 2017 BCSC 1430 (CanLII), the court concluded that it could not decide the question based solely on the conflicting affidavit evidence before it. Further, the court wanted to hear evidence as to Ms. Palmer’s capacity at the time the changes were made. A trial of the issue was ordered (perhaps unfortunately, as the estate had a value of only $200,000). Further, it was ordered that all other potential beneficiaries be put on notice of the proceeding.
In Ontario, strict compliance with the requirements of executing and altering a will is required. There is no similar provision to the curative powers found in s. 58 of the WESA. For a discussion of the requirements for valid alterations to a will, see our blogs “Handwritten Alterations to an Executed Will” and “Handwritten Alterations to a Formal Will”.
Thank you for reading, and have a great long weekend.
While we don’t wish ill of anyone, one little dream that many people share is the long lost inheritance.
You have a distant aunt who lived happily in Europe until her death five years ago at age 100. You didn’t know you had a distant aunt until you travelled to Europe and visited the village that you knew your family was from. People in the village started talking: “maybe this is Giovanni” and the next thing you know, you’re being whisked to the village lawyer and told that you had a distant aunt who died five years ago and left you 100,000 euros. And the money’s been waiting for you all this time!
Such a win-win scenario – an aunt with a happy life, a potful of money to take home, and an introduction to relatives you barely knew you had. Could it happen to you?
Not likely, especially in today’s digital age. While any one of us could get an inheritance from someone who secretly names us in their will – a scenario that happens more frequently than you might think – if you are named in a will, it’s likely that you’ll find out soon after the person dies.
The reason is twofold: first, estate trustees (executors) have a duty to contact all beneficiaries, and they must make reasonable efforts to find unknown or missing heirs. So, the search is on quickly to find you if you are a beneficiary. You can read more about the duty of estate trustees to track beneficiaries here.
Second, in this digital age, it’s becoming less and less likely that you cannot be found, with search engines, social media and family history all available at the touch of a button. The internet has made those “so you’re Giovanni” moments few and far between.
That said, there may be situations where a somewhat distant family member has died and you think you might be a beneficiary. You wait for a month or two, but hear nothing. In addition, there have been more than a few family disagreements over the years, so you’re worried about your rights as a potential beneficiary and want to get information about the will.
In Ontario, this provincial government site provides a good overview of the estate settlement process, and where you can get information about a will. And this article by Newfoundland lawyer Lynne Butler provides some very practical steps that you can take to gain access to a will if it has not yet been made public.
Thank you for reading!
A common problem in estates administration is getting an occupant out of the house of a deceased person. Often, the deceased lived with a son or daughter, and after the deceased dies, the son or daughter refuses to leave the premises. The question arises as to how to get the occupant to leave the premises.
This was the problem in Filippelli Estate, 2017 ONSC 4923 (CanLII). There, the deceased died on October 22, 2016. At the time of her death, the deceased was living in her house with her son, Roberto. The deceased died leaving a Will that transferred her house to her two other children. 90% of the residue of the estate was to also pass to the two other children, with only 10% going to Roberto.
Roberto refused to vacate the house. The estate trustees, being the two other children of the deceased, brought an application for vacant possession. In response, Roberto argued that he was a “tenant” and that the estate trustees must therefore comply with the Residential Tenancies Act. (“RTA”) Roberto argued that he was paying his mother $650 per month. The evidence however only supported payments of $650 on four occasions over a 16 month period. There was no evidence of an oral or written tenancy agreement. The judge found that the payments were consistent with a mother and son sharing the cost of living expenses, and not a tenancy. The judge stated that “it would be a dangerous precedent if a son or daughter could simply assert that s/he was a tenant and that his/her deceased parent was the landlord and therefore thwart the testator’s intentions in a case like this, and require the Estate Trustees to take proceedings under the RTA.”
An order was made requiring Roberto to vacate the premises within 30 days. If he failed to vacate, the Sheriff was authorized to forcibly remove him.
Ironically, Roberto was ordered to pay “occupation rent” for occupying the property from the date of death to the date of vacancy. The court stated that occupation rent was akin to a claim of unjust enrichment. The mere fact that he remained in the house after the date of death did not make him a tenant and the estate trustees a landlord. In addition, Roberto was ordered to pay maintenance expenses of $282.50, and costs of $5,000.
The outcome may have been different if there was better evidence of a tenancy.
Further, the outcome may have been different if a claim was made for dependant support. Such a claim can often lead to an interim order of continued possession.
Thank you for reading. Have a great weekend.
The past two years have brought a number of changes to the law related to assisted dying in Canada, and Canada now permits medical assistance in dying provided certain criteria are met.
While estate matters aren’t always the priority when dealing with someone who is terminally ill and suffering, they should be considered to ensure that families don’t make a bad situation even worse with unintended estate consequences. And the first step in considering the estate consequences of assisted dying is knowing what you can and can’t do in Canada in relation to assisted dying.
Here’s a quick recap of what’s changed in Canada since 2015.
What prompted the change
The Supreme Court of Canada ruled in Carter v. Canada [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do] that the parts of the Criminal Code that prohibited medical assistance in dying would no longer be valid.
How the government responded
The federal government followed the Supreme Court ruling by passing legislation in 2016 that allowed eligible Canadian adults to request medical assistance in dying. To qualify for medical assistance in dying, an individual must be 18 years or older and meet the following four eligibility criteria:
- Have a serious and incurable illness, disease, or disability
- Be in an advanced state of irreversible decline in capability
- Endure physical and psychological suffering that is intolerable to them; and
- Their natural death has become reasonably foreseeable.
They must also be capable of providing informed consent at the time that medical assistance in dying is provided.
Estate planning issue: Would an assisted death disqualify a life insurance payout?
To recap, most life insurance policies won’t pay a death benefit if the policyholder commits suicide within a certain time period after the policy takes effect, typically two years. However, the Canadian Life and Health Insurance Association has said that if someone follows the legislated process for medical assistance in dying, providers would pay out on policies that are less than two years old.
As always though, providers would not pay if an individual misrepresented his or her health when signing the contract, or if the policy specifically exempted the particular illness for which the holder sought a medically assisted death.
Can requests for medical assistance in dying be made in advance?
Advance requests for dying are not permitted. This means that Canadians with conditions like Alzheimer’s or Huntington’s disease that lead to mental incapacity will not be granted the right to consent while they are still of sound mind, as their disease is unlikely to be in an advanced state at that time, nor would their natural death be reasonably foreseeable.
However, some people are drafting clauses in their health care directives and living wills that provide their representative to give consent for assisted dying if they become mentally incompetent and terminally ill in the future. While this has no effect under current laws, the hope is that the law will change and recognize these previously drafted clauses. You can find a good discussion of this issue here:
Is taking someone off life support the same as assisted dying?
It is not. The law is clear that the decision to withhold or withdraw life support where there is no hope of recovery is not assisted dying (it is a natural death), and there are no direct estate implications for those actions.
Estate planning issue: Can a family member, such as a spouse, provide assistance in dying?
A family member can only provide assistance by following the process outlined in the legislation, which involves, amongst other things, a written, witnessed request by the terminally ill individual for medical assistance in dying, and a review of the case by two medical practitioners.
In other words, the spouse or other family member cannot take matters into their own hands – something that could occur if the terminally ill individual is near end of life and suffering, but lacks mental capacity to request assistance in dying. The law in Canada is clear that a person found guilty of committing murder is prevented from inheriting the estate of the victim. Taking steps on your own to hasten someone else’s death, even on compassionate grounds, could be considered a crime and could have estate implications.
For a good summary of end-of-life law and policy in Canada, Dalhousie University provides helpful information on a complex subject: http://eol.law.dal.ca/?page_id=236.
Thank you for reading … Enjoy your day,
Today on Hull on Estates, Paul Trudelle and Doreen So discuss expert witnesses and the gatekeeper role of the trial judge in the Court of Appeal decision in Bruff-Murphy v. Gunawardena, 2017 ONCA 502.
Recent amendments to the regulations under the Ontario Disability Support Program Act have made significant changes to the Program, making it easier for people with disabilities to qualify for and maintain benefits. The amendments vary the asset and income limits under the Act.
Prior to the amendments, an ODSP recipient was entitled to receive payments from a trust or life insurance policy or gifts or other voluntary payments of up to $6,000 and still receive benefits. These payments would not be included in the calculation of the income of the recipient. Any payments beyond this would be included in income, and may reduce the benefits received. Under the amendments, effective September 1, 2017, these payments may now be up to $10,000. Also, payments made for the purchase of a principal residence, motor vehicle or payment of first and last month’s rent are now specifically excluded from the definition of income.
Further, the prescribed limits for assets have been altered substantially. Prior to the amendments, benefits were restricted to individuals with assets totalling less than $5,000. (Note: the definition of assets excludes a number of assets from the calculation.) Under the new regulation, an individual can have assets totalling $40,000 and still qualify for benefits. For couples, the prior limit of $7,500 is increased to $50,000.
Benefits payable have also been increased slightly: from $649 per month to $662 per month for an individual, and from $479 per month to $489 per month for an individual for shelter.
Estate planners should be aware of these changes, and the other provisions of the program, and should discuss these with clients planning for children with disabilities, and when advising disabled beneficiaries of an estate.
For a general discussion of the Ontario Disability Support Program, see my paper “ODSP: What Every Estate Solicitor Needs to Know”.
Thank you for reading.
We all know that bad people can do some very bad things. So, if your estate plan includes a continuing power of attorney for property (as it likely should), and you name someone to manage your affairs in the event you can’t, you’ll undoubtedly be choosing a “good person” to be your attorney, not the bad apple nephew with a spotted past.
But here’s the unfortunate thing: when it comes to a power of attorney, and access to money, some otherwise good people have been known to do some very bad things.
There are usually three reasons for this:
- First, there is opportunity, with a perception that there is little chance of detection, penalty, or consequences.
- Second, there is often rationalization, which can involve a sense that the attorney is “entitled to some financial help anyway” or that they “are the only ones looking after mom” so deserve more than the others.
- Third, there is often a financial need – children in post secondary school, mounting credit card debt, or other emerging financial stress.
A power of attorney is an extremely powerful document – in many cases, the objective of the grantor is to allow someone else to completely take over management of their property, due to age, potential incapacity, or other reasons. And while the law holds attorneys to a high standard to protect grantors (the attorney has a duty of utmost good faith to act in the grantor’s best interests), the potential for abuse is immense.
If someone suspects an attorney for property is abusing the granted legal authority to commit a financial crime, there are options available to protect the vulnerable person. Theft, fraud and forgery conducted under the guise of a power of attorney can be reported to the police and prosecuted under the Criminal Code. In addition, in Ontario, the Public Guardian and Trustee can be contacted to protect an incapable person being victimized by financial abuse.
In terms of steps that you can take in advance to safeguard your assets from abuse, this article highlights a recent Ontario case of theft under a power of attorney, and outlines some protection steps that individuals can include in their power of attorney to help guard against theft or fraud:https://estatelawcanada.blogspot.ca/search/label/theft%20by%20attorney.
Thank you for reading!
Today on Hull on Estates, Ian Hull and Rebecca Rauws discuss the recent Court of Appeal decision in Vanier v Vanier, 2017 ONCA 561, including the different tests for undue influence and the practice of assessing undue influence by capacity assessors.