Tag: Noah Weisberg

02 Jul

Attorney for Personal Care Denied Request for Accounting

Noah Weisberg Guardianship, Passing of Accounts, Power of Attorney Tags: , , , , , , , , , , , 0 Comments

The recent Ontario Court of Appeal decision in Dzelme v Dzelme acts as a helpful reminder that even if an attorney has standing to seek a passing of accounts, the Court may still refuse to grant the passing.

John was named as the attorney for personal care for his father, Ritvers, and sought an accounting of Ritver’s financial affairs from his brother Arnis (Ritvers’ other son) who was the attorney for property.  Both John and Arnis agreed that John, given that he was an attorney for personal care, could apply under section 42(4)(1) of the Substitute Decisions Act for a passing of accounts without leave.  Nonetheless, the Court of Appeal identified that even if a person has standing to apply for an accounting, it remains the discretion of the Court to order a passing of accounts.

In deciding whether to order the passing, the superior court judge made the following findings of fact: (i) both the father and mother were capable when they executed written instructions to Arnis not to produce any financial information about his affairs to John; (ii) the mother maintained this position in response to John’s motion; (iii) a capacity assessment found that the mother was capable of making her own decisions; (iv) a third brother corroborated Arnis’ evidence that he was abiding by his parent’s wishes; (v) the application judge did not doubt that Arnis was following his mother’s wishes; and, (vi) there was no reason to suspect that Arnis was acting improperly with respect to certain transactions.

On this basis, the Court of Appeal upheld the application judge’s dismissal of John’s request for an order that Arnis pass his accounts of Ritver’s property.

Noah Weisberg

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27 Jun

What is the Limitation Period in Setting aside a Marriage Contract?

Noah Weisberg Litigation Tags: , , , , , , , 0 Comments

The recent Ontario Superior Court of Justice decision in F.K. v. E.A. addresses limitation periods and discoverability in the context of setting aside a marriage contract.

By way of background,  husband and wife began their relationship in 2000, cohabitating in June of 2004, and marrying on July 20, 2005.  Shortly before marriage, on July 14, 2005, the (soon to be) husband and wife entered into a marriage contract.  The marriage contract was prepared by the wife who obtained a template off the internet.  The husband and wife eventually separated on August 13, 2012.  A dispute arose over certain terms of the marriage contract.  The husband thereafter brought a claim on August 24, 2017 for spousal support, equalization, as well as setting aside the marriage contract.  Two of the issues that the Court addressed included whether (i) the relief sought to set aside the marriage contract is subject to the two year limitation period and, if so, (2) whether the husband brought his claim in time.

Regarding the first issue, the Court found that the husband’s claim to set aside the marriage contract is a claim as defined in section 1 of the Limitations Act and therefore subject to the two year limitation period.

As it relates to the second issue of discoverability, evidence was adduced that the husband met with a lawyer in October 2012 to discuss the dispute with his wife and certain legal issues arising with respect to the marriage contract.  Based on this evidence, the Court established that by that date at the latest, he first knew: that the injury, loss or damage had occurred; that the injury, loss or damage was caused by or contributed to by an act or omission; and, that the act or omission was that of the person against whom the claim is made.  The Court dismissed the husband’s claim finding that the two years began running the date he met with his lawyer.

 

Noah Weisberg 

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18 Jun

Hull on Estates #574 – Social Media in the Context of Estate Litigation

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

Today on Hull on Estates, Noah Weisberg and Nick Esterbauer discuss the role of social media in the context of Estate Litigation.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Noah Weisberg.

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09 Apr

Hull on Estates #569 – Beneficiary as a Witness to a Will? Don’t Go There.

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

In today’s podcast, Noah Weisberg and Sayuri Kagami discuss the problems caused by a beneficiary under a Will witnessing its execution in the context of the recent Saskatchewan decision of Mahin v Kolosnjaji, 2019 SKQB 32.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Noah Weisberg.

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04 Apr

When Estates Become Public

Noah Weisberg Estate & Trust, In the News Tags: , , , , , , , , , 0 Comments

One of the consequences of having to probate a Will (now referred to in Ontario as applying for a Certificate of Appointment of Estate Trustee) is that the Will, along with the assets covered by the Will, are made public.

I was intrigued to read about the estate of the billionaire co-founder of Microsoft, Paul Allen.   In addition to Allen’s Last Will being made public,  multiple news articles have published a list of some of the amazing properties owned by him, including a:

  • condominium in Portland, Oregon ($700,000 to &850,000)
  • 20-acre property in Santa Fee purchased from Georgia O’Keefe’s estate ($15 million)
  • 2,066-acre ranch in Utah ($25 million)
  • Silicon Valley 22,005 square foot house ($30 million)
  • New York City penthouse on 4 East 66th Street ($50 million)
  • double property in Idaho totalling 3,600 acres ($50 million)
  • 3 acre compound on the Big Island in Hawaii ($50 million)
  • 18 bedroom mansion in the South of France ($100 million)
  • 387 acre camp in Lopez Island, Washington ($150 million)
  • 8 acres of land on Mercer Island, Washington ($130 million)
  • 400 foot Octopus Yacht (up to $130 million)

While I have no intention to address the efficacy of Allen’s estate plan, I thought the publicity of his estate provides a reminder that careful estate planning can ensure that privacy is maintained, and the payment of probate tax be avoided.  In Ontario, there are numerous options available including preparing a secondary (or tertiary) Will, placing assets in joint ownership with the right of survivorship, or simply gifting assets prior to death.  This is by no means an exhaustive list, and each option carries certain advantages and disadvantages.

While I expect that few people have the impressive catalogue of properties that Allen had, it should by no means preclude careful estate planning.

 

Thanks for reading!

Noah Weisberg

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02 Apr

The Ups and Downs of Estate Trustee Compensation

Noah Weisberg Executors and Trustees, Passing of Accounts, Trustees Tags: , , , , , , , , 0 Comments

When is it appropriate for a court to reduce estate trustee compensation?  The Supreme Court of Nova Scotia addressed this issue in Atlantic Jewish Foundation v Leventhal Estate (“AJF”).

Before getting into the AJF decision, it is worthwhile to include the caveat that determination of estate trustee compensation in Ontario (a summary of which can be found in my paper here) differs somewhat as compared to Nova Scotia.  Nonetheless, both provinces use 5% of the value of the estate, subject to the discretion of the court, as the starting point in determining the quantum of compensation.  As such, AJF remains informative in Ontario.

The deceased left a Will naming his friend, who was also a lawyer, as his Estate Trustee.  AJF was named as the residuary beneficiary.  The Will was silent as to estate trustee compensation.  As the estate was valued at over $15 million, the Estate Trustee sought compensation in the approximate amount of $896,000, being 5% of the gross adjusted value of the estate.  AJF maintained that the amount was excessive and proposed compensation in the amount of $300,000.

In determining how much compensation the Estate Trustee should be entitled to, and applying an approach similar to Ontario’s ‘five factors’, the court made the following observations: the level of responsibility is often greater for higher value estates; the increasing level of responsibility does not necessarily rise in direct proportion to the size of the estate; the Estate Trustee arranged and supervised the funeral and burial, which was mainly handled by telephone; the Estate Trustee acted promptly in selling the house; many of the assets were already in the form of cash, and the Estate Trustee knew the banks the deceased used; the Estate Trustee was diligent, wise and prudent and had to be a hands-on executor; the Estate Trustee made no mistakes; a large part of the estate was made up of investments that were readily converted into cash for distribution; and, the estate was larger rather than complex.

The court noted that 5% should be reserved for estates where there are complicating features that require more than wise and careful planning to maximize the value of the estate.  Therefore, the court awarded compensation in the amount of $450,000, being slightly more than 50% of the maximum amount that could be awarded.  A larger amount of compensation would have the effect of reading into the Will a bequest to the Estate Trustee that the deceased did not intend to make.

Noah Weisberg

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22 Jan

Hull on Estates #564 – When Can a Trustee Claim, and Justify, a Special Fee?

76admin Estate & Trust, Estate Planning, Litigation, Podcasts Tags: , , , , , 0 Comments

In today’s podcast, Noah Weisberg and Rebecca Rauws discuss executor and trustee compensation, and particularly the circumstances in which a trustee may be able to claim a special fee. This topic was also discussed in a recent paper by Lisa Toner, “When Can a Trustee Claim, and Justify, a Special Fee?”

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Noah Weisberg.

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03 Jan

Can a Non-Party Attend and Assist Counsel at an Examination?

Noah Weisberg Litigation Tags: , , , , , 0 Comments

The Rules of Civil Procedure govern examinations for discovery.  Silent though, is when a non-party will be permitted to attend an examination for discovery and assist counsel.  The answer can be found in case law.

An examination for discovery is not a public hearing, and as such non-parties cannot simply show up like they can at court.  Instead, the party seeking the non-party’s attendance and assistance must either get the consent of counsel or permission from the court.

Master Dash in Poulton v. A&P Properties Ltd., set out the following governing principles:

  1. since a cross-examination on an affidavit is not a public hearing, a non-party may attend to assist a party only on the consent of the other side or on the order of the court;
  2. the onus is on the party seeking such an order to prove entitlement to it;
  3. the non-party should not be a witness at the subsequent trial;
  4. the attendance of the non-party must not disrupt the examination process;
  5. the non-party must not take the role of witness or assist the witness is answering questions; and
  6. a court in exercising its jurisdiction as to whether to allow the presence of a non-party must do so having regard to both substantive fairness to the parties and the appearance of fairness.

While every case will turn on the specific facts, it appears that generally speaking experts may attend to assist with technical and complex evidence (although they cannot later be an expert witness at trial), as well as a resource person or expert assistant who is familiar with a file in a document-intensive case.

Noah Weisberg

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31 Dec

The Top Estate & Trust Cases from 2018

Noah Weisberg General Interest, New Media Observations, News & Events, Trustees, Wills Tags: , , , , , , , , , , 0 Comments

It is nearly a new year.  It is during this time that we reflect on the past year, make goals for the upcoming year, and come across all sorts of ‘best of’ and ‘most popular’ rankings.

As such, I herewith present the most popular estate and trust cases from 2018, as decided solely by me (and without regard to any actual data):

  • Moore v Sweet – the Supreme Court of Canada provided clarification regarding the juristic reason competent of the test for unjust enrichment, as well as confirmed the circumstances in which a constructive trust remedy is appropriate in the context of unjust enrichment.
  • Re Milne Estate & Re Panda – In Re Milne (currently under appeal), the Superior Court of Justice found that multiple Wills were invalid where so-called ‘allocation clauses’ (also referred to as basket clauses) in the Wills provided the Estate Trustees with the discretion to determine which estate assets fell under which Will. Conversely, in Re Panda, the Superior Court of Justice declined to follow Re Milne and probated the Will notwithstanding the presence of an allocation clause.  The Superior Court of Justice also addressed the roles of the court as either the ‘court of probate’ or ‘court of construction’ and whether a Will is a trust that is subject to the three certainties.
  • Wall v Shaw – the Court of Appeal (sitting as the Divisional Court) held that there is no limitation period to objecting to accounts in an Application to Pass Accounts. The Court reasoned that a notice of objection does not commence a ‘proceeding’ for the purposes of section 4 of the Limitations Act.
  • Seguin v Pearson – the Ontario Court of Appeal reiterated the different tests for undue influence that apply in the inter vivos and the testamentary context.
  • Valard Construction Ltd. v. Bird Construction Co. – the Supreme Court of Canada found that a trustee had a fiduciary duty to disclose the terms of a trust (here, it was a bond) to the beneficiary, notwithstanding the fact that the express terms of the trust did not stipulate this requirement.

 

 

Thanks for reading!
Noah Weisberg

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25 Oct

‘Passing’ on your Points

Noah Weisberg Beneficiary Designations, Estate Planning Tags: , , , , , , , , , 0 Comments

As an avid Seinfeld fan, I recently watched the episode where Elaine Benes kept on eating submarine sandwiches just so she could collect enough points to earn a free sub.  Spoiler alert: Elaine lost the loyalty card before redeeming the free sub.  Unfortunately, many estates fail to take advantage of these rewards and end up just like Elaine.

It is estimated that in the US alone, three trillion frequent flyer miles are given annually.  Notwithstanding this dizzying number of points, in Ontario there is no law addressing if, and how, points can be transferred upon death.  Airlines are left to create their own procedure and standards.

There is a helpful resource, here, which sets out the policies of the major US frequent flyer programs in plain english.  The CBC offers similar information for Canadian frequent flyer programs here.  While some airlines permit the transfer of points, many discount their value.  Some even refuse to allow there to be a transfer altogether.

As discussed in my previous blog, Anthony Bourdain included his frequent flyer miles in his will.  Given the suspected value of these points, this estate planning decision makes sense.

In considering an estate plan, a testator should, first, decide whether to choose airlines based on the ability to transfer points.  Second, if a testator has amassed significant points, and they are transferrable, make sure to include them in a will.

Noah Weisberg

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