Tag: interested person
A recent decision of the Supreme Court of Nova Scotia considers the issue of which individuals may qualify as persons having an interest in an estate.
Kenny v. Kenny Estate, 2016 NSSC 214 (CanLII), featured a situation in which the deceased, a father of two, had executed a new will after his wife and son had died. The deceased’s last will and testament named his daughter as sole residuary beneficiary. His prior will named both children (or their surviving issue) as alternate beneficiaries in the event that his wife predeceased him. The granddaughter of the testator, being the daughter of the predeceasing son, sought to have the will proved in solemn form as a “person interested in the estate”.
The application was heard within the context of Nova Scotia’s Probate Act and the related procedure and regulations. The Probate Act refers to the requirement to prove a will in solemn form on application by an interested person seeking this relief.
In determining that the granddaughter qualified as an interested person and had standing to bring such an application, the Court considered the following facts:
- The granddaughter would have benefitted as an alternate residuary beneficiary under a prior will (as a result of her grandmother’s death and her father’s death before that of her grandfather);
- The inclusion of grandchildren as issue is consistent with the jurisprudence and
the definition of the word used in Nova Scotia’s Intestate Succession Act;
- The granddaughter was a lineal descendant of the testator, and, accordingly, qualified as his “issue”.
In Ontario, an “interested person” who objects to a will and seeks to have it proven in solemn form can, similarly, request this relief pursuant to Rule 75.01 of our Rules of Civil Procedure. However, the Ontario Court of Appeal recently confirmed that the right of an interested person to have a will proved in solemn form is not absolute. An interested person may request proof in solemn form but cannot require it, as it is in the discretion of the Court alone to determine whether the testamentary instrument ought to be proved and, if so, the manner in which this is to be done.
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Yesterday we looked at situations where a person is missing and there is a need to manage their property in their absence. But what if the absentee never returns? In such circumstances, an “interested person” may make an application to the Court pursuant to the Declarations of Death Act, 2002, S.O. 2002, c. 14. An interested person is any person who is or would be affected by an order declaring that an individual is dead.
The Court may make an order declaring that an individual has died if the Court is satisfied that the person has disappeared in circumstances of peril or has been absent for at least seven years.
The applicant must show that:
a) he or she has not heard of or from the person since their disappearance in circumstances of peril or within the 7-year period;
b) to his or her knowledge, after making reasonable inquiries, no other person has heard from the individual;
c) there is no reason to believe that the person is alive; and
d) there is sufficient evidence to find that the person is dead
The date of death will be the date upon which the evidence suggests the person has died or the date of the application, if based on a 7-year absence.
A declaration of death is not an easy one to obtain. It will apply for all purposes unless specified otherwise by the Court in the Order.
A recent case that is helpful in considering what constitutes “sufficient evidence” for a declaration of death isRe Mezo, 2010 ONSC 4968 (CanLII). In Re Mezo, the missing person had been admitted to the hospital for psychiatric difficulties. She left the hospital on a day pass and had not been heard from for 10 years by family or friends. The Court declared her dead pursuant to subsections 2(3) and 2(5) of the Declarations of Death Act. The Court found that, on a balance of probabilities, there was sufficient evidence to find that the missing person was dead because:
a) she left the hospital leaving important pieces of identification behind;
b) she had not accessed her bank account or other financial assets since her disappearance;
c) she never returned to her apartment or retrieved her car; and
d) she had absolutely no contact with members of her family who obviously cared about her safety and whereabouts.
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