Tag: mutual wills

16 Jul

Hull on Estates #576 – Mutual Wills and Legal Obligations

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Mutual Wills, Podcasts, Show Notes Tags: , , , , , 0 Comments

This week on Hull on Estates, Stuart Clark and Kira Domratchev discuss the decision of Nelson v Trottier, 2019 ONSC 1657, and the legal obligations of the survivor in circumstances where there is a mutual wills agreement.

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29 May

Hull on Estates #547 – Test for Mutual Wills

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This week on Hull on Estates, Paul Trudelle and Doreen So discuss the test for mutual wills in the decision of Rammage v. Estate of Roussel.

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19 Sep

A Collaborative Motion for Summary Judgment

David M Smith Litigation, Uncategorized, Wills Tags: , , 0 Comments

In yesterday’s blog, my colleague Umair observed that moving for summary judgment may carry significant risks.  This is particularly so where only the moving party seeks to use the process and, where credibility is in dispute, the Court will often be compelled to find that a genuine issue for trial exists.

The situation is quite different, however, when the parties agree to use the summary judgment process to adjudicate a dispute.  Where the parties have agreed to have all or part of a claim determined by summary judgment and the Court is satisfied that it is appropriate to grant same, judgment will issue one way or the other.

A collaborative approach to summary judgment may be an advisable manner of adjudication, particularly having regard to the principles of proportionality with regard to the assets in dispute.  As a general rule, if counsel agree that the matter can be adjudicated based on an agreed Statement of Fact and transcripts of examinations for discovery, Judgment may be made.  The key determination is whether the viva voce evidence of witnesses and the “machinery” of cross-examination before the trier of fact is required for the fair and just adjudication of the case.  Note that the Judge may direct the matter to trial even if counsel submit the case on consent for summary judgment (this would be a rare occurence indeed).

An example of a collaborative motion for summary judgment is the decision in Rammage v. Estate of Roussel (2016 ONSC 1857).  In this case,   Alfred Roussel (“Alfred”) and Ruth Roussel (“Ruth”) were married in 1997. Each had two children from previous relationships.  In 1998, Alfred and Ruth executed wills by which they gave their respective estates to each other and provided for an equal division amongst their four children on the death of the surviving spouse (the “1998 Wills”). Alfred died 2009 leaving his estate to Ruth. Ruth decided to prepare a new will in 2010 leaving the entirety of her estate to her two children. Ruth later died in 2013.

Alfred’s children took issue with the fact that Ruth’s estate passed entirely to her beneficiaries and not them and litigation ensued.

As there was no direct written or oral confirmation that the 1998 Wills were mutual, Alfred’s children had to rely on extrinsic evidence to support the existence of a binding legal contract. Justice Reid considered the context and the agreed evidence.  In finding that the deceased made a mutual will, the Court considered: (i) the 1998 Wills were made in context of 13 years of cohabitation including a commitment of marriage, (ii) Alfred had been the breadwinner for many years, (iii) Alfred and Ruth had acted throughout their marriage as if they had a family consisting of four children, (iv) the obituary was indicative of a unified family and (v) Alfred and Ruth had told the four children they would be left everything once both had passed.

Thanks for reading,

David Morgan Smith

Find this blog interesting? Please consider these other related posts:

Summary Judgment Granted

Summary Judgment in Estates Litigation

Late-Stage Summary Judgment Motions Questioned

24 Jul

Mirror wills versus mutual wills – different documents, different purposes

Ian Hull Estate & Trust, Estate Planning, Hull on Estates, Trustees, Uncategorized, Wills Tags: , , , , 0 Comments

Don’t let the similar sounding names fool you – while there are some similarities between “mirror wills” and “mutual wills,” there’s also a world of difference.

Mirror wills – also referred to as reciprocal or joint wills – are typically created by spouses who want to leave their estates first to each other, and then ultimately to their joint children.

The wills will “mirror” one another in that they typically state that the person leaves everything to their spouse, and if the spouse should predecease them, then everything goes to the children. With a mirror will, the survivor is free to change his or her will in the future if circumstances change.

So, what then is a mutual will? Mutual wills are a similar, yet clearly distinguishable, estate planning vehicle, with the key differentiator that the will of the surviving spouse cannot be changed after the first spouse dies.

Mutual wills are most commonly used by spouses who enter into marriages with children from previous relationships. While they wish to benefit each other upon death, they also want their respective children to have benefits upon the death of the surviving spouse. While a mutual will has elements of a mirror will, it also involves an agreement not to revoke or vary the terms after one of the spouses dies.

While this agreement can be made orally, it makes proving the agreement problematic if it’s later disputed. For this reason, the drafting lawyer should confirm the intention for mutual wills then document that intention with an express written agreement. The agreement should clearly outline the scope of the property to be governed by the agreement and the rights of the survivor to use that property during their lifetime. Ideally, this agreement should also be acknowledged in the will.

Mutual wills are a useful tool when a couple are agreed that their property should be distributed in a particular way and are content to waive their right to change those plans after the first death. However, because mutual wills “lock in” a pattern of estate distribution – and circumstances and situations can often change – these wills are often a source of controversy and dispute. They require careful drafting, and careful consideration before they are created.

You can find a detailed overview of the law related to mutual wills in Canada here: https://hullandhull.com/wp-content/uploads/2015/01/oct-2007-wills.pdf.

Thank you for reading!
Ian Hull

29 Nov

Hull on Estates #495: Revisiting Mutual Wills

Hull & Hull LLP Archived BLOG POSTS - Hull on Estates, Hull on Estate and Succession Planning, Hull on Estates, Joint Accounts, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , 0 Comments

 This week on Hull on Estates, Ian Hull and Lisa Haseley discuss the Mutual Wills Doctrine. Link to Paul Trudelle’s paper: Mutual Wills A Review http://bit.ly/2fs2l5P

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26 Jul

Hull on Estates #477 – Evidence in Support of Mutual Will Contracts

Hull & Hull LLP Archived BLOG POSTS - Hull on Estates, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, Uncategorized, Wills Tags: , , , , 0 Comments

This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the concept of mutual wills and the recent decision of the Ontario Superior Court of Justice in Rammage v. Roussel Estate. (http://bit.ly/29PXrLa)

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09 Jun

The Long Lost Child

Lisa-Renee Estate & Trust, Estate Planning, In the News, Litigation, Support After Death, Wills Tags: , , , , , , , , , 0 Comments

As speculation starts to appear in the media about the estate of the late Muhammad Ali, who passed away this past weekend, the typical estate questions emerged in the press: who will inherit his estate and how much do they stand to benefit?

parent and childWhen a celebrity such as Muhammad Ali (or Prince) passes away it is always an important reminder of estate issues that may arise, particularly when blended families are involved.  For instance, my colleague Laura Betts recently revisited the issue of mirror or mutual Wills and what can happen when the surviving spouse changes their Will after their spouse has passed away.

Another issue that comes to mind are the possible claims that could be made against an estate by a long lost child.

In Ontario, any person appearing to have a financial interest in an estate may make an application to the court under the Rules of Civil Procedure seeking the court’s direction with respect to the estate.

Where a person claims to be a child of a deceased, section 8 of the Children’s Law Reform Act (the “CLRA”) imposes a rebuttable presumption of paternity in limited circumstances.  In the alternative, the court has the jurisdiction pursuant to s. 10 of the CLRA to order DNA testing so that a finding as to the parentage of the applicant can be made.

Depending on the circumstances of the case, once the applicant is found to be the biological child of the deceased, a number of claims could potentially be asserted.  For example, if the deceased died testate, the wording of his or her Will could give rise to an interpretation issue.   Alternatively, in the case of an intestacy, the biological child may assert their statutory entitlement to the estate.  In both instances, however, if the biological child falls within the scope of Part V of the Succession Law Reform Act then a claim for dependency may also be asserted.

Thanks for reading.

Lisa Haseley

31 May

Mutual Wills v. Mirror Wills: Rammage v. Estate of Roussel

Laura Betts Estate Planning, Litigation, Wills Tags: , , , 2 Comments

Mutual wills, are separate and distinguishable from mirror wills. Namely, mutual wills are reciprocal wills that the makers have agreed cannot be changed without the consent of the other. Once one of the them has died, it is not possible for the surviving partner to receive such consent, and therefore the terms cannot be altered. Mirror wills, on the other hand, can be changed by either party as they decide, and without notice to the other party.

The distinction between mutual wills and mirror wills is becoming increasingly relevant given the rise of blended families (families consisting of married couples and their children from previous relationships).

Most individuals who marry into a blended family want to ensure that both their children and their new spouse will be protected once they pass away. The execution of a mirror will may not always be sufficient to ensure this outcome.

signature-962355_960_720[1]This issue was recently considered in the Ontario Superior Court of Justice decision in Rammage v. Estate of Roussel, 2016 ONSC 1857.

In this case, Alfred Roussel (“Alfred”) and Ruth Roussel (“Ruth”) were married in 1997. Each had two children from previous relationships.  In 1998, Alfred and Ruth executed wills by which they gave their respective estates to each other and provided for an equal division amongst their four children on the death of the surviving spouse (the “1998 Wills”). Alfred died 2009 leaving his estate to, Ruth. Ruth decided to prepare a new will in 2010 leaving the entirety of her estate to her two children. Ruth later died in 2013.

Alfred’s children took issue with the fact that Ruth’s estate passed entirely to her beneficiaries and not them and litigation ensued.

As there was no direct written or oral confirmation that the 1998 Wills were mutual, Alfred’s children had to rely on extrinsic evidence to support the existence of a binding legal contract. Justice Reid considered the context.  Specifically, the fact that the 1998 Wills were made in context of 13 years of cohabitation including a commitment of marriage, the fact that Alfred had been the breadwinner for many years, the fact that Alfred and Ruth had acted throughout their marriage as if they had a family consisting of four children, the fact that the obituary was indicative of a unified family and that Alfred and Ruth had told the four children they would be left everything once both had passed.

Justice Reid held, that in the circumstances, Alfred’s children had satisfied the onus on them of proving that a verbal contract had existed between Ruth and Alfred to the effect that neither Ruth nor Alfred could change their 1998 Wills.

Thank you for reading.

Laura Betts

14 Jul

Mutual Wills – Hull on Estates #171

Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, Wills Tags: , , , , , , , 0 Comments

Listen to Mutual Wills

This week on Hull on Estate and Succession Planning Jonathan Morse and Chris Graham discuss aspects of mutual wills and the doctrine of mutual wills. They look into some interesting cases related to this topic as well advantages and disadvantages of mutual wills.

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

26 Feb

Due Regard to the Presumption of Due Execution

Hull & Hull LLP Estate & Trust Tags: , , 0 Comments

The recent England and Wales Court of Appeal decision in Olins v. Walters [2008] EWCA Civ 782 gained some degree of notoriety among British legal observers.  This Mutual Wills case was notable for its clear pronouncement that a constructive trust is impressed on the estate of the first testator to die during the lifetime of the second testator.

Of arguably greater interest was the somewhat remarkable finding of the Judge of first instance ( see [2007] EWHC 3060 (Ch).] on the usually mundane issue of due execution.  One of the witnesses to the Will stated under oath that she was "more than 100 percent sure that she had not witnessed the signature of the deceased on the Will."  Notwithstanding this evidence, the trial judge held that she was honest but mistaken and upheld the Will.

It is not often easy to mess with legal presumptions.  Consider, for instance, the commentary subsequent to the Supreme Court of Canada decision in Pecore v. Pecore which focused on the suggestion that resort to presumptions is made as a "last resort."   While it is tempting to think that the evidence will always rule the day, the trial judge finding in Olins v. Walters (which, curiously, was appealed on the mutual wills issue but not on the finding of due execution) suggests that the presumption of due execution of a Will is particularly entrenched.

David M. Smith

 

 

 

 

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