Today on Hull on Estates, Jonathon Kappy and Doreen So talk about morality in public policy, explaining how it may limit the ability to gift a gift under a will, and reference the McCorkill v. Streed case out of New Brunswick. If you have any questions, please email us at firstname.lastname@example.org, or leave a comment on our blog page.
Moral and legal obligations overlap when the Legislature or the Courts make laws respecting the governance of family relationships. For example, science tells us that we have a moral obligation to care for our minor children hardwired into our DNA. And the common law has clearly defined the fiduciary duty that overlays this moral obligation.
Conversely, at the other end of our life, the reciprocal duties between parents and their adult children are not always as clear cut. As my colleague Natalia Angelini pointed out in a recent blog, the Courts in British Columbia have applied the applicable provincial statute to legally enforce a parent’s moral obligation to provide a fair share of his or her estate to their adult children. In Ontario, where there is not the same statutory authority, the Court of Appeal has nonetheless observed the existence of moral obligations that exist between parents and children.
While, in Ontario, the legal enforcement of the moral obligation to provide support to adult children from one’s estate appears to first require dependency, the situation is less clear where parents are in need of support from their adult children. This may be a developing area of law for the family law bar. More than one commentator has predicted an increase in the seldom used provision of the Family Law Act mandating adult children to support their parents as the demographic shift to a more aged population continues.
On a closing note it is interesting to note that China is considering imposing a legal obligation on adult children to visit their aged parents. As reported by CNN: "A draft amendment to China’s ‘Elderly Law’ requiring the children of elderly Chinese to visit home more often is being considered by the government. If passed, it would require children to care for their parents’ “spiritual needs and cannot neglect or isolate them.”
David M. Smith – Click here for David Smith.
A question was recently posed to Ken Gallinger, an ethics columnist with the Toronto Star: was one of two brothers who received his father’s estate ethically obliged to share his entitlement with his disinherited brother? The questioner stated that he was shocked that his father chose to make such a distribution when there was no indication that the father intended to treat his sons other than equally in his Will. The advice of Gallinger was along the lines of: no, you are under no obligation to share the bequest…but… you would probably feel better if you did.
Estate litigation is one of the few areas of law where you could conceivably see the same question posed to an advice columnist as to a lawyer. Reading the exchange between the questioner and Gallinger gave me pause to consider what my answer would be and, more to the point, to consider that I had yet to be asked that question.
Lawyers can sometimes present as insensitive, hiding the fact that they have a personal, moral or spiritual viewpoint because it does not fall within the parameters of their retainer agreement with their clients. Paid by their clients to provide legal advice, lawyers are not expected to opine on the moral dilemma presented by an unexpected windfall. Will challenges are concerned with ascertaining the true intentions of the testator, not with determining whether those intentions were motivated by bitterness or spite.
In concluding his response to the question posed, Gallinger made the comment: "sometimes it’s better to be generous than right." Enough said.
Have a great weekend,
Picking up on our discussion of issues encountered in capacity litigation, a common scenario sees the Court asked to make inquiry into the relationship between the grantor and the attorney by a more “distant” sibling or relative (either geographically or otherwise).
Procedurally, in Ontario, leave of the Court must be sought under s. 42(4) of the Substitute Decisions Act to permit the Applicant to make application for an order compelling an attorney under a Power of Attorney for Property to pass his or her accounts.
The test for leave has been characterized in the unreported case of Ali v. Fruci  O.J. No. 1093 as twofold: (i) does the applicant have a genuine interest in the welfare of the grantor of the power of attorney?, and (ii) if leave were to be granted, is a court likely to order a passing of accounts?