Tag: hull

17 Oct

Intention Matters: Matrimonial Homes

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At a recent Trusts and Estates Brown Bag Lunch (held on the third Tuesday of most months at various locations: see the OBA web page, here), we discussed the case of Egan v. Burton, 2013 ONSC 3063 (CanLII).

There, in the context of a family law proceeding, the issue was whether a cottage was a matrimonial home, thereby affecting the spouses’ Net Family Property and equalization. If the cottage was a “matrimonial home”, then the husband, who owned the cottage, would not get the credit for the value of the cottage at the time of marriage.

The court held that a two-part test should be applied to determine whether the cottage was a “matrimonial home”. Firstly, was the cottage ordinarily used by the spouses, and secondly, was it used as a family residence.

Here, the court found that the first part of the test was met: the cottage was used by the spouses. However, with respect to the second part of the test, the court found that the wife never treated the cottage as a family residence. The wife treated the cottage differently than the family home. She made no contribution to the operation or maintenance of the cottage. She did not show the same interest in the cottage that she showed to the home. “If she had been asked prior to separation about her intention regarding the cottage, I am satisfied that she would have said that it was his cottage and his alone.” Here, unlike other cases where the cottage was found to be a matrimonial home, there was no evidence of an intention to treat the cottage as a family home.

In the estates context, in advancing or defending a claim for equalization under s. 5(2) of the Family Law Act, consideration should be given to not only the use of a secondary residence, but also the intention of the parties and how the second residence was treated by them.

Thank you for reading.

Paul Trudelle

26 Sep

Hull on Estates #349 – Pets and Estate Planning

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Listen to: Hull on Estates Episode #349 – Pets and Estate Planning

Today on Hull on Estates, Andrea Buncic and Paul Trudelle discuss the importance of giving thought to your pets when planning your estate or drafting your will.

If you have any questions, please email us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on Andrea Buncic.

Click here for more information on Paul Trudelle.

17 Sep

Hull on Estates #348 – Notices of Objection

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Listen to: Hull on Estates Episode #348 – Notices of Objection

Today on Hull on Estates, Jonathon Kappy and Josh Eisen discuss the issue of standing to object to a will and motions to have notices of objection removed.

If you have any questions, please email us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information about Jonathon Kappy.

Click here for more information about Josh Eisen.

16 Aug

Bequests to Witnesses Void

Hull & Hull LLP Litigation, Wills Tags: , , , , , , , 0 Comments

Several years ago, my neighbour asked me to witness the execution of his will. I was glad to help, but at the same time, a little disappointed.

This is because of s. 12(1) of the Succession Law Reform Act. This section provides that, in effect, a bequest to a witness, the witness’s spouse, or a person claiming under either of them is void. The witness, however, remains a competent witness.

Similarly, s. 12(2) provides that a bequest to a person who signs a will on behalf of the testator is also void, as is any bequest to the person’s spouse or a person claiming under either of them.

However, the provisions are not absolute, and s. 12(3) allows the court to find that the bequest is not void. To trigger this saving provision, the court must be satisfied that neither the witness nor the witness’s spouse exercised any “improper or undue influence” on the testator. 

In addition, if the witnessing was not necessary, as in the case where the will was a holographic will, or where there were two other proper witnesses, then the bequest will not be void.

(Things can get complicated where there is a codicil. A gift voided due to an attesting beneficiary can be validated if there is a proper codicil that is properly witnessed. On the other hand, a valid gift in a will is not voided where the beneficiary witnesses a later codicil: see Hull and Hull, Probate Practice, 4th ed., p. 181.)

Solicitors take note: in Whittingham v. Crease, 1979 CanLII 286 (BC SC), the drafting solicitor was successfully sued where a bequest to the plaintiff failed because his wife witnessed the signing of the will.

Alas, in the case of my neighbour, and due to the nature of the bequests (which did not include me), s. 12 did not apply.

Have a great weekend.

Paul Trudelle

15 Aug

Renunciation, Resignation, Passing Over And Removal of Estate Trustees

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A recent decision of the Ontario Court of Appeal, Chambers Estate v. Chambers, 2013 ONCA 511, deals with the concepts of renunciation, resignation, removal and passing over of an estate trustee, and the sometimes subtle distinctions amongst the concepts.

There, a “renunciation” is defined as the “formal act whereby an executor entitled to a grant of probate (or person having the right to a grant of administration) renounces such right.”   Renunciation is not available if a party has been appointed as estate trustee under a Certificate of Appointment, or has already intermeddled with the estate, or, put another way, where a party has dealt with an estate without having been formally recognized as estate trustee. Once an estate trustee has accepted the office, he or she cannot disclaim it by renunciation. In such a case, if the estate trustee no longer wishes to act, he or she must resign.

With respect to removal or passing over, the proper terminology is that an estate trustee is “passed over” before a Certificate of Appointment is issued, or before he or she has acted as estate trustee, and “removed” if a Certificate of Appointment is issued or he or she has intermeddled.

Thank you for reading.

Paul Trudelle

13 Aug

Til Death Do Us Part – Spouses, RRSPs and Taxation

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In Kiperchuk v. The Queen, 2013 TCC 60 (CanLII), the Tax Court of Canada held that a spouse who received RRSP benefits upon her spouse’s death was not liable to pay the deceased’s unpaid tax debt arising prior to his death.

There, deceased designated his wife as the beneficiary of his RRSP. The couple subsequently separated, and divorce proceedings were commenced. However, the designation remained in place. Prior to his death, the deceased incurred significant tax debts, which were unpaid as at the time of his death. His estate was insufficient to pay the tax debts. CRA sought to find the wife liable for the unpaid taxes. It relied on s. 160 of the Income Tax Act which, in effect, imposes joint liability for unpaid taxes (to a certain extent) where a tax payer transfers property to a spouse, child or “person with whom the person was not dealing at arm’s length” for less than fair market value. 

The Court refused to find the wife liable. Although it had no difficulty in finding that there was, in fact, a transfer, the transfer took place at the time of death. As of that date, the status of marriage ended due to death, and the wife was, therefore, no longer a spouse, and further, “nor was she a person with whom the transferor was not dealing at arm’s length at the time of the transfer”.

The Court may have been splitting hairs here. The transfer took effect on the moment of death, and as of that moment, according to the reasoning, the parties were no longer spouses: the husband “was not related to the appellant by marriage at the time she became entitled to the RRSP”. “The status of marriage is ended by death… .”

Further, the Court does not give much explanation as to why it considered the transfer to be at arm’s length. 

Finally, the limited application of the case should be noted. The case dealt only with tax liability arising before death: a beneficiary of an RRSP is liable for unpaid income tax on the RRSP proceeds where the estate is unable to pay: s. 160.2(1) of the Income Tax Act.

Thank you for reading.

Paul Trudelle

24 May

He Said What?

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Slang plays a large part in our daily lives. Keeping up with slang expressions can be a near impossible task. However, thanks to the Urban Dictionary website, that task is an easier one.

Urban Dictionary, started in 1999, is a “crowdsourced” collection of slang. Readers can submit slang words and definitions, and other readers can “vote” on whether to accept the definition or not. The site currently has 2.3 million definitions posted, and 30,000 new definitions are proposed every month. The format allows for a constantly evolving, always current compendium of slang English language, or as I call it, Slanglish.

As reported recently by Leslie Kaufman in the New York Times, Urban Dictionary has found its way into the courts, with several US courts turning to Urban Dictionary to define terms. 

In Canada, three decisions on CanLII have referenced Urban Dictionary. In R. v. Ali, 2011, BCSC 1850, Urban Dictionary was used to confirm that “strapped” meant to carry a gun, and the evidence of a detective on this point was accepted as expert evidence. In R. v. Davies, 2012 ONSC 3631, the court refers to definitions from Wikipedia and Urban Dictionary that were entered as evidence. Counsel objected to the authenticity of the definitions, and the court held that the definitions were not necessary to support the charges. In WCAT-2010-00981 (Re), 2010 CanLII 41721 (BC WCAT), the tribunal footnoted a definition from Urban Dictionary to explain a doctor’s note that the worker’s cough was “supratentorial”. Supratentorial is a word used by doctors and nursed to imply that the patient’s problems were all in their mind. The tentorium is a membrane just under the brain, so “supratentorial” refers to what is above that, being the brain.

So to all of you out there planning to “jack” an estate, be careful. Urban Dictionary, and the courts, are on to you.

Have a great weekend.

Paul Trudelle

23 May

Deciding Who Gets the Icon

Hull & Hull LLP Executors and Trustees, Litigation Tags: , , , , , , 0 Comments

The division of personal property left by a loved one on his or her death can be a thorny issue. Often, the deceased gives directions to the Estate Trustee with respect to his or her intentions. These can be in the form of a memorandum incorporated into a Will. In some cases, the wishes of the deceased are just that: wishes that are not binding on the Estate Trustee. Still in other cases, the deceased gives all of the personal property to the Estate Trusee with discretion on the part of the Estate Trustee to decide how the property is to be distributed.

In Borisenko Estate, 2013 ABQB 245 (CanLII), the court was faced with the question of whether one of the deceased’s sons was entitled to a Russian icon owned by the deceased.   The icon was said to have a value of $1,600. The deceased died leaving four children. One of the children, Vera, was appointed as Estate Trustee. The deceased’s Will provided that the Estate Trustee had full, uncontrolled discretion in selling, converting into money any property, postponing conversion, retaining property in the form it was in at the time of death and fixing the value of the estate or any part. The decision of the Trustee was final and binding. Further, failing agreement on the disposition of an asset, the Estate Trustee was to have absolute discrection to determine which beneficiary shall receive the asset in dispute.

Despite these provisions, one of the deceased’s children brought an application for a declaration that he was entitled to the Russian icon. The application was dismissed. The court noted the absolute discretion of the Estate Trustee to deal with the icon. “It is not for the court to become involved in dividing up personal assets of an estate when the power and discretion to do so has been left with the Trustee”.

The court rejected the argument that because the Estate Trustee may want to keep the icon herself, she was in a conflict. The court stated that this neither takes away from the Estate Trustee’s discretion, nor puts her in a conflict.

The court also noted (again, without taking away from the discretion of the Trustee) that, normally in the Russian culture, the icon would go to the oldest son. The fact that the Applicant was not the oldest son was not lost on the court.

Thank you for reading.

Paul Trudelle

17 Apr

Hull on Estates #328 – Rights of Spouses

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Listen to: Hull on Estates #328 – Rights of Spouses

Today on Hull on Estates, Natalia Angelini and Moira Visoiu discuss the Ontario Court of Appeal’s decision in Carrigan v. Carrigan Estate.  A link to the case can be found here.   

If you have any questions, please e-mail us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on Natalia Angelini.

Click here for more information on Moira Visoiu. 

10 Apr

Hull on Estates #327 – Tips for Young Advocates

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Listen to: Hull on Estates #327 – Tips for Young Advocates

Today on Hull on Estates, Paul Trudelle and Jonathon Kappy discuss a recent article in the March 2013 issue of The Advocates’ Journal titled “Judges’ Tips for Young Advocates” by Gillian Kerr.

If you have any questions, please e-mail us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on Paul Trudelle.

Click here for more information on Jonathon Kappy.

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