When is it Appropriate to Extend the Time Granted in Favour of Equalization under the Family Law Act?
Applications for an extension of time (beyond six months from date of death) to elect under the Family Law Act (“FLA”) are regularly brought before the Court. Decisions with respect to that are often dealt with by way of short endorsements.
Justice Dunphy, in Aquilina v Aquilina, 2018 ONSC 3607, a recent court decision, made some interesting comments regarding applications for an extension of time in such circumstances.
The Deceased passed away in December, 2017, leaving the Applicant (his wife) and their three adult children. The Applicant was primarily a homemaker and as such, her level of information regarding the family financial affairs was imprecise. The Estate was not a simple one to administer, in part due to a number of business interests the Deceased had in the family’s native country, Malta, held through various corporations, real estate holdings and an active business.
At the time of the hearing, the Estate did not have an administrator. It was determined that the Deceased did not leave a Will.
The Applicant in this matter had two options – making a claim under the Succession Law Reform Act (“SLRA”) or the FLA.
Under the SLRA, in the event of an intestacy, the beneficiaries of the Deceased’s estate are the Applicant and their three adult children. Under s. 46(2) of the SLRA, where there is no Will and there is more than one child of the Deceased, the surviving spouse is entitled to 1/3 of the Estate plus the “preferential share” prescribed by s. 45 of the SLRA.
In contrast, s. 5(2) of the FLA provides that the surviving spouse will receive 1/2 of the difference between the value of the net family property of each of the spouses where the Deceased had the higher of the two amounts.
The Applicant has a period of six months from the date of death to make the election as per s. 6(10) of the FLA. Absent an election, the surviving spouse takes under the SLRA.
Criteria for Extension
The Applicant requested that the court: (i) extend the time to make an election until two years from the date of the application; (ii) extend the time for the deemed election to the same date; and (iii) extend the time during which distributions from the Estate are suspended until the same date.
In making a finding, the Court must consider:
- Whether there are apparent grounds for relief;
- Whether delay, if any, was incurred in good faith; and
- Whether anyone will be substantially prejudiced by the delay.
It is important to note, that the surviving spouse does not have to have precise and accurate information but that he or she must have sufficient information to make an informed choice. Justice Dunphy noted that extensions are intended to be the exception and not the rule.
Analysis and Decision
Justice Dunphy held that it was going to take a period of time – very likely a year or more – to be able to gather the facts necessary to understand the value of this Estate and the Applicant’s intersecting interests within (meaning the consequences flowing from her different roles as a shareholder, widow and spouse). Therefore, Justice Dunphy held that there are some grounds for relief in the circumstances of this case.
In considering whether there was any delay that was not incurred in good faith, though Justice Dunphy noted that the Application was brought very close to the six month anniversary of the Deceased’s date of death, he placed weight on the fact that the death was “sudden, unexpected and shocking” and the relative complexity of the Estate. He held that the delay was incurred in good faith.
Justice Dunphy found that there would be no substantial prejudice in this case if an election was granted because the only other beneficiaries of the Estate are the three adult children of the Deceased and the Applicant, who confirmed that they did not oppose the motion. He did balance against that finding, however, the inherent prejudice in having all or a substantial portion of the Estate frozen. In making this consideration, Justice Dunphy found that any prejudice in this matter was slight.
Based on the facts, Justice Dunphy held that more time would be required to consider the rights of the Applicant, as the surviving spouse, under the SLRA as compared to the FLA. As such, he granted the Applicant all the relief sought, but reduced it to one year from the date of the Application instead of the two years that the Applicant was seeking.
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When I was a kid I loved the song “I’m my own grandpa” from the Muppets. For those of you unlucky enough not to have grown up with such a lyrical masterpiece, the song tells the tale of someone who, as a result of his father marrying his wife’s daughter from a previous relationship, becomes his own grandfather. It is a masterpiece up there with the likes of any of Beethoven’s symphonies.
The song recently came flooding back into my memory when a question was posed to me regarding the inheritance rights of first cousins on an intestacy who, as a result of a quirk in the marriage patterns of their relatives, were first cousins to the deceased both on their maternal and paternal sides. The question which followed is, if you are a first cousin of an individual on both sides of the family, does that mean that you are entitled to double the inheritance in circumstances in which the estate is to be distributed to the first cousins on an intestacy?
The “double cousining”, if it can be called that, occurred as a result of one of the deceased’s father’s brothers marrying one of the deceased’s mother’s sisters. The children born to such a couple are first cousins of the deceased both on their maternal and paternal sides.
The issue of whether a “double cousin” receives twice the inheritance on an intestacy to those cousins unlucky enough to have only been related to the deceased once was dealt with by the court in Re Adams, (1903) 6 O.L.R. 697 (Ont. H.C.). In ultimately concluding that the “double cousins” do not receive double the inheritance, and that all cousins receive the same amount, Justice Meredith states the following:
“Under the Devolution of Estates Act all the property in question is to be distributed as personal property is now distributable. And among collateral relatives in the same degree of kinship it is so distributable equally. They take in their own right, not by way of representation. And there is no question of quantity or quality of blood; those of the half-blood take equally with those of whole blood; and those of the double blood — if I may so name a relationship, in the same degree, on the part of both father and mother — take no more, for all are akin to the intestate, and all in the same degree of kinship.” [emphasis added]
Re Adams suggests that being a “double cousin” does not result in double the inheritance, and that a cousin related to the deceased both on the maternal and paternal sides receives the same as if they had only been related to the deceased once. Those of you looking to explore unorthodox family trees in a goal to maximize potential distributions to you on an intestacy will have to look elsewhere.
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April 21, 2017 marked one year since the death of the beloved recording artist, Prince. We have previously blogged about the legal issues surrounding Prince’s Estate that have emerged since his death. Although more than a year has now passed, the Estate continues to be engaged in litigation.
According to media reports, producer George Ian Boxill tried to release an EP containing previously unreleased songs by Prince to coincide with the first anniversary of his death. Boxill asserted that he had the right to release the music. In a lawsuit commenced by Paisley Park Enterprises, Prince’s Estate disagreed and alleged that Boxill was in breach of the recording agreement that he had signed with Prince.
The Estate was initially successful in blocking Boxill’s attempts to release the EP of new music. However, according to a new report in TMZ, Boxill has now filed additional legal documents that state that the unreleased music was not the subject of a nondisclosure agreement.
Separately, as we have previously blogged, Prince died without a Will and any known children, resulting in claims from a number of possible heirs.
According to a recent news report, the Minnesota judge presiding over the proceedings had indicated that he would not make a declaration regarding the heirs of Prince’s Estate until appeals by other potential heirs whose claims had been rejected were allowed to run their course. Lawyers for Prince’s sister and half-siblings have now argued that this delay will unnecessarily increase costs and hinder the proper administration of the Estate.
We have previously blogged about the importance of carefully addressing issues regarding intellectual property and any possible rights the estate may have after the testator’s death in a testator’s estate plan. Deceased writers, musicians and other artists may be parties to agreements that bind their estates and affect the rights and control over their intellectual property.
It is generally advisable for drafting solicitors to ensure that such legal documents are reviewed as part of a creative professional’s estate planning. It may also be prudent to obtain the advice of a lawyer who specializes in intellectual property law, to ensure that the estate plan adequately addresses any possible rights the estate may have after the testator’s death. Disputes over the beneficial ownership and control of a testator’s intellectual property can result in protracted and expensive litigation.
The legal issues surrounding Prince’s Estate reiterate the importance of careful estate planning while the testator is still alive. Lack of certainty regarding the beneficiaries of the estate, the deceased’s intentions and the property/rights of the estate can significantly increase the risk that the estate will become embroiled in protracted litigation.
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It is not uncommon to encounter situations where an individual dies without a will, having never been married, widowed, separated or divorced and without children. It can, however, be uncommon to come across situations where an individual dies under these circumstance but also leaves behind no known close relatives or next of kin. When this occurs, the question that immediately arises is: who will inherit the deceased person’s estate?
In Ontario, the distribution of the estate of an unmarried, childless person who has died without a will is governed by Part II of the Succession Law Reform Act (the “Act”). The Act provides a statutory scheme that sets out classes of individuals who will inherit on such a persons’ intestacy. The order of entitlement is as follows:
- Nieces and Nephews; and finally,
- Next of Kin.
When none of the above individuals can be identified or located, section 47(7) of the Act states that the property of the deceased person becomes the property of the Crown, and the Escheats Act, 2015 applies.
Depending on the circumstances, individuals without a family may wish to consider if there is a charitable organization or community activity that they belong to that they would prefer to benefit from their estate under a will. In the alterative they may wish to take proactive steps to locate their distant relatives during their lifetime.
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I recently watched the documentary Finding Vivian Maier (which was originally released in 2013) and I was struck by John Maloof’s search for anyone who could tell him about who Vivian Maier truly was after her death. After her death, Vivian Maier (February 1, 1926 – April 21, 2009) gained fame as an American, Chicago-based, street photographer. During Vivian Maier’s lifetime, she was simply known to those around her as a nanny, and perhaps an eccentric with a camera around her neck.
Vivian Maier’s art was entirely discovered posthumously and it all began when John Maloof attended a local auction house in Chicago and bought 30,000 negatives for another project. In the course of considering whether the negatives were suitable for Maloof’s book on the history of the Northwest Side neighbour of Chicago, Maloof later became “obsessed with Vivian’s work, and made it his mission to reconstruct her archive”.
The documentary is a chronicle of Maloof’s mission to reconstruct her archive (and of Vivian Maier, herself), including how he found records of her birth from a New York City archive and how Maloof ended up in an remote village in France where her mother’s family lived.
Vivian Maier died unmarried and childless and, as it turns out, intestate.
According to the Chicago Tribune, a Virginia copyright lawyer and former professional photographer named David Deal became concerned that people were selling Vivian Maier’s photographs in manner that infringed copyright law. David Deal used the information that he learned from Maloof’s chronicles to locate one of Vivian Maier’s first cousins once removed. In 2014, David Deal became counsel to Francis Baille in a court case where Mr. Baille asked the probate court to name him as an heir to the Estate of Vivian Maier. Apparently, the information that David Deal used was the story of how Maloof had located another first cousin named Sylvian Jaussaud by hiring genealogists. As Maloof’s story goes, he bought Sylvian Jaussaud’s rights to Vivian Maier’s work for $5,000.00. Ultimately, Mr. Baille’s court case, which involved John Maloof and the Cook County public administrator’s office (the county where Vivian Maier died), settled under private terms that are sealed from the public.
In Ontario, where a person dies without a will, and there is no surviving spouse, children, parent, brother or sister, the property shall be distributed among the nephews and nieces. If there are no surviving nephews and nieces either, “the property shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation”. If there are no next of kin either, the property becomes the property of the Crown, and the Escheats Act, 2015 applies”.
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I recently blogged about the about the fact that, generally speaking, an adopted child would have the same rights to take from a trust established in relation to their adoptive parents as would a biological child of their adoptive parents. While this may leave the dream of being adopted into a rich family alive for some, what impact, if any, does an adoption order have upon the adopted child’s rights vis-à-vis their birth parents’ estates? If an adopted child’s birth parent should die without a Will, or leave a bequest in their Will to their “children”, would the adopted child receive a benefit from their estate?
In Ontario, the legal status of adopted children is governed by the Child and Family Services Act (the “CFSA“). Section 158(2) of the CFSA provides that, for the purposes of law, upon an adoption order being granted the adopted child becomes the child of the adoptive parent and ceases to be the child of the person who was his or her parent before the adoption order was granted.
As a result of section 158(2) of the CFSA, and the clear provision that an adopted child ceases to be a “child” of their birth parent in the eyes of the law upon the adoption order being granted, an adopted child would no longer be a “child” of their birth parent in determining entitlement from the birth parent’s estate. The adopted child would no longer receive a benefit on an intestacy of their birth parent in accordance with Part II of the Succession Law Reform Act, nor be included with the class of “children” or “issue” in any bequest in their birth parent’s Will.
While an adopted child would not take as a “child” of their birth parent on an intestacy or in a bequest in their birth parent’s Will, this does not necessarily mean that an adopted child may never receive an entitlement from their birth parent’s estate. Should the birth parent of an adopted child wish to provide a bequest to such a child from their estate, they may specifically provide a bequest to such an adopted child in their Will. In providing such a bequest however, it is important that the adopted child be specifically referenced by name in the Will, as any general gift to the testator’s “children” would not catch the adopted child as a result of section 158(2) of the CFSA.
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What happens if an individual dies intestate, and upon application for a Certificate of Appointment of Estate Trustee Without a Will, a Not Clear Certificate is returned to the applying party?
Pursuant to Rule 74.12 of the Rules of Civil Procedure:
(1) A certificate of appointment of estate trustee shall not be issued until the court has received from the Estate Registrar,
(d) on an application where there is no will, a certificate that no will or codicil has been deposited in the Superior Court of Justice.
A will being deposited in the Superior Court of Justice does not necessarily mean that the will belongs to the deceased individual. Therefore, while one may receive a Not Clear Certificate (“Certificate”) from the Estate Registrar for Ontario, it does not guarantee that a will exists in the deceased’s name. Rather, the Certificate creates the need for the applicant to take extra steps to ensure that the wills that are deposited with the Superior Court of Justice are not wills that belong to the deceased.
What Steps Should You Take?
A Certificate sent by the Estate Registrar for Ontario will contain a list of different deposit dates and court file numbers, corresponding to wills that are already deposited with the Superior Court of Justice. The listed wills on deposit will all have names similar to that of the deceased individual.
Upon receipt of the Certificate, it is the applicant’s or their lawyer’s responsibility to track down each of the deposited wills, in order to prove that they do not belong to the deceased. This involves attending the Registrar of the Court where the will has been
deposited. In some circumstances, faxing the Certificate will suffice. The Registrar will then deliver to the applicant a photocopy of the Envelope for Will on Deposit. This will allow the applicant to make the necessary investigation to determine that the will on deposit is not the will of the deceased. The Envelope for Will on Deposit contains the name of testator, the testator’s address, the name of the executor, the executor’s address, and the date the will was deposited for safe keeping.
Once the applicant gathers all of the Envelopes for Will on Deposit, the applicant must go through the envelopes and ensure they do not belong to the deceased. The applicant must then prepare an Affidavit stating that each Envelope for Will on Deposit does not belong to the deceased. The Affidavit should be filed at the Court, along with the Certificate. Once the Court is satisfied the deposited wills do not belong to the deceased, a Certificate of Appointment of Estate Trustee Without a Will should be issued. If the will does, in fact, belong to the deceased, different steps will need to be taken in order to obtain a Certificate of Appointment of Estate Trustee With a Will.
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Last week we discussed the doctrine of republication, which makes an older valid will operate as if it had been executed on the (later) date of republication. A codicil that refers to a prior unrevoked will is the most common example of republication.
Republication must not be confused with revival of a revoked will, which requires clear evidence of an intention to make valid a previously revoked will. (We have written before about revocation of a will, which can be effected by marriage (depending on the will), making a new will, a proper written revocation, and destruction of the will with an intention to revoke.)
Section 19(1) of the Succession Law Reform Act provides that a revoked will can be revived by: (a) another duly executed will, (b) a codicil that shows an intention to revive, or (c) re-execution of the will with the required formalities. Re-execution also requires intention, so merely signing a revoked will does not revive it.
If there is a codicil that refers to a validly revoked will, the court will look to see whether there is evidence of intention to revive. If a codicil is ambiguous, the court will consider extrinsic evidence of whether the testator had an intention to revive the will. Whether or not extrinsic evidence is admitted, the court will place itself “in the position of the testator” and consider the codicil in light of “surrounding circumstances.” In this way, the court will try to find the testator’s true intentions from the codicil (Hale v Tokelove (1850), 2 Rob Ecc 318 at 325).
Intention to revive can be a significant issue if a testator does not know that his or her will was revoked in the first place. A properly executed codicil that would republish a valid will might not be sufficient to revive a revoked will. For example, a testator might not be aware that his or her marriage revoked their previous will. If that testator makes a codicil referring to the earlier will, without understanding that the will was revoked by operation of law, then the codicil may not show the necessary intention to revive the will. If the testator dies without making a new will, his or her estate will pass on either full or partial intestacy, despite having made a will.
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This week on Hull on Estates, Natalia Angelini and Umair Abdul Qadir discuss Catto v Catto, 2016 ONSC 3025 (http://bit.ly/2cLwM6I), and the conflicts that can arise over funeral and burial arrangements on an intestacy. Read more about the Catto decision on our blog (http://bit.ly/2c4dOH3). And for more on the duty of the Estate Trustee to make funeral and burial arrangements, be sure to check out a paper from our Estate, Trust and Capacity Law Breakfast Series entitled “The Moment of Death and Beyond: Preliminary Duties of the Estate Trustee”. (http://bit.ly/2cJeekY)
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
Shortly after a death, the Estate Trustee is called upon to make important decisions about the funeral and burial arrangements for the deceased.
In many instances, the deceased’s Last Will and Testament may provide instructions to the Estate Trustee regarding the funeral or the burial. However, such wishes regarding burial and funeral arrangements are precatory and not binding on the Estate Trustee. Generally speaking, while it is advisable for an Estate Trustee to consider the wishes of the deceased and his or her next-of-kin when making decisions about the funeral and the burial, the Estate Trustee’s authority to make such decisions is only constrained by a legal duty to dispose of the remains in a dignified manner.
While the authority to make these decisions is fairly straightforward where a deceased person leaves a Will naming an Estate Trustee, conflicts between family members can arise when the deceased dies intestate. This was recently illustrated by the Honourable Justice Smith’s decision in Catto v Catto, 2016 ONSC 3025.
In Catto, the Deceased died after less than a year of marriage to his spouse, Donna. Donna made arrangements for the Deceased’s funeral and burial in his hometown of LaColle, Quebec. However, before the Deceased’s ashes could be buried in his family’s plot in Quebec, Donna advised the funeral director that she wished to transport the ashes back to Peterborough. The funeral director advised Donna that the Deceased’s place of burial was ultimately her decision, and Donna decided to have the ashes interred in Peterborough without notice to any of the Deceased’s family members.
The Deceased’s mother subsequently brought an Application, alleging that the Deceased had wished to be buried in the family plot in Quebec and that Donna had agreed to the Deceased’s burial in the family plot. The Deceased’s mother sought Orders that the Deceased’s ashes be exhumed and that half of the ashes be returned to the family plot. As the Deceased had died without a Will, she also sought an Order appointing her as the Deceased’s Estate Trustee.
Where a person dies intestate, section 29 of the Estates Act gives the Court the discretion to appoint the spouse or common law partner, the next-of-kin, or both the spouse and the next-of-kin as the Estate Trustee. Justice Smith confirmed that section 29 does not confer a priority to the spouse to be appointed as Estate Trustee.
However, in the circumstances, given that the Deceased’s mother lived outside Ontario, that Donna was the sole beneficiary of the Deceased’s Estate, and that there was no potential conflict of interest with her appointment as Estate Trustee, Justice Smith concluded that the administration of the Deceased’s Estate should be committed to his spouse.
Thus, Justice Smith held that “[t]he decision on where the deceased is to be buried and the manner of burial is a right that is granted to the administrator of the Estate which in this case, is his wife Donna.” The relief sought by the Deceased’s mother with respect to the exhumation and reburial of the Deceased’s ashes was denied.
The Catto decision highlights the conflicts that can emerge on an intestacy, and serves as a reminder of the importance of making a Will: although the testator may not be able to dictate the terms of his or her funeral and burial, he or she may be able to minimize the conflict and acrimony over who has the authority to make these decisions by simply naming an Estate Trustee.
Thank you for reading,
Umair Abdul Qadir