Tag: Noah Weisberg
Alberta, like Ontario, has enacted a statute to address the financial support of dependants. While Ontario has Part V of the Succession Law Reform Act (“SLRA”), Alberta has Part 5 of the Wills and Succession Act. Given the analogous provisions, case law in one jurisdiction may be helpful in the other. The recent decision in Dabrowski (Re), from the Court of Queen’s Bench of Alberta, is such an example, addressing the need to produce evidence regarding an applicant’s financial status in dependant support claims.
Alina Dabrowski passed away in 2012, leaving an Estate comprised primarily of a condominium in Calgary. The Will named her daughter (the Applicant) and her grandson (the Respondent) as personal representatives of the Estate. According to the Will, the condominium passed to the Respondent. Partly as a result of this, the Applicant commenced an application for dependant support seeking a life interest in the condominium.
On the basis that the Applicant met the definition of a family member (and therefore qualified as a dependant), the Court turned its focus to the factors to consider in an application for the maintenance and support of a family member.
Specifically, the Court focused their attention on section 93(c), which has the Court consider “… the family member’s capacity to contribute to his or her own support, including any entitlement to support from another person”. This is similar to section 62(1) of the SLRA, which requires the Court to consider (amongst other things), the dependant’s capacity to contribute to his or her own support.
The Court dismissed the claim for support (and awarded costs to the Respondent) on the basis that insufficient information was provided by the Applicant with respect to her sources of income or expenses. As a result, the Court was unable to determine whether the Applicant was able to contribute to her own support. In fact, the Court stated, “It is impossible to award a sum for the benefit of the applicant when her financial information is little more than a guess”.
Therefore, in pursuing a claim for dependant support, it is clearly necessary to provide sufficient evidence as to the alleged dependant’s sources of income or expenses. It seems that this may assist the Court, whether it be in Alberta or Ontario, in determining whether a dependant is able to contribute to their own support.
A recent review of case law, helpfully summarized here, highlights the increasing use of social media with respect to the service of Court documents.
According to Rule 16.04 of the Rules of Civil Procedure, “Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process of any other document required to be served personally or by an alternative to personal service…the court may make an order for substituted service…”. Therefore, the Court’s ability to approve service by a non-conventional manner is found here.
Unreported in Ontario, the 2014 decision of Juzytsch v. Terlecki, discussed in the Law Times, notes that Justice Healey of the Superior Court of Justice ordered substituted service of a statement of claim via Facebook. This relief was granted on certain criteria being met, including establishing that the person’s whereabouts are unknown despite diligent investigation.
Service by Facebook has also been relied upon in the United States of America. A recent 2015 reported decision from the Supreme Court, New York County, permitted the plaintiff to serve the defendant with a divorce summons “…using a private message through Facebook”. Certain criteria also had to be met including: the inability to serve the summons personally; that it would be “impracticable” to serve the defendant by substitute service on a person of suitable age and discretion or by using “nail and mail”; and it must be shown that service through Facebook can reasonably be expected to give the defendant actual notice that they are being sued.
Since it appears to be the case in New York County, as litigants are prohibited from serving other litigants, the plaintiff’s lawyer was required to log into the plaintiff’s Facebook and identify themselves before sending the summons, either by attachment or hyperlink. Additionally, the plaintiff and their counsel were required to call and text the defendant advising of the delivered summons via Facebook.
As of January 1, 2015, the Ontario Rules of Civil Procedure have permitted service by e-mail in certain instances, details of which can be found in our prior blog. Although the Court seems to be embracing technology to effect service, given the limited situations as to when such non-conventional ways are permitted, the Courts nonetheless ensure that litigants be made aware of any such claim which requires service on them.
Today on Hull on Estates, Jonathon Kappy and Noah Weisberg discuss administration and accounting obligations with respect to digital assets and digital accounts. Although much attention of late has been targeted towards the gathering of these assets, and the determination of the rightful owner, attention must also turn to the inclusion of these assets in administration and accounting.
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In today’s society, not only are individuals amassing vast digital assets, but they are also increasingly present on social media. More than ever, when planning your estate it is important to consider what happens to digital assets and your social presence when you pass away. The importance of these questions have been addressed prior on Hull & Hull LLP’s Toronto Estate Law Blog, here, here, and here.
As succession law in Ontario does not provide a complete solution, individual corporations are beginning to take matters into their own hands. Yahoo Japan is one such example.
Yahoo has created Yahoo Ending, in order to address end of life preparations known to the Japanese as ‘Shukatsu’.
According to an article in the Washington Post, this service allows the deactivation of a user’s account after their death, in addition to offering the deletion of documents, photos, and videos stored on the site, as well as automatically cancelling charges linked to Yahoo’s digital wallet. Furthermore, a virtual memorial space can be created along with an e-mail prepared by the deceased to be sent upon their death to preregistered recipients.
Interestingly, Yahoo Ending can also assist in estimating the cost of a funeral, locating a cemetery, and even the preparation of a Will.
Users of Yahoo Ending are charged a monthly fee.
Individuals must consider the size of their digital footprint and the many accounts they may currently have open. It is important to meet with professionals and estate planners to ensure your digital assets and social media accounts are properly considered, and planned for, in your Estate.
In order for a trust to be valid, three certainties must be met: intention; subject matter; and objects. Often referred to as the ‘three certainties’ principle, stemming from the 1840’s English decision in Knight v. Knight, it is an ever popular blog topic on Hull & Hull’s Toronto Estate Law Blog. A recent decision out of the Ontario Superior Court of Justice revisits the importance of the certainty of objects principle notwithstanding the ‘worthiness’ of such a gift.
In Stoor v. Stoor Estate, the Applicant was the named beneficiary of a trust, which included a gift over provision, in his late mother’s Will. As the only child, the Applicant sought relief, in part, that the gift over provision found in the trust failed for uncertainty of objects.
Certainty of objects requires one to say with certainty whether any given individual is or is not a member of the class: Baden’s Deed Trust (No. 2) (Re).
Part XI of the Will directed the estate trustee to distribute the residue of the Applicant’s Trust,
“…following the payment of any outstanding debts, charges, taxes and expenses of the said Paul Stoor Trust, all the rest and residue of the said Paul Stoor Trust shall be paid to my Trustees for distribution to any and all worthy individuals and or causes who shall be alive or in existence at this time, as my Trustees may, from time to time, in their absolute and unfettered discretion consider advisable“.
In determining whether the gift over fails for certainty of objects, Justice Himel considered the SCC decision in Brewer v. McCauley which held that it is the testator, through their Will, that must dispose of their property. Accordingly, this cannot be delegated to the estate trustee, unless the gift is for charitable purposes, at which time the selection of the charities may be delegated.
A helpful summary on charitable trusts and the exceptions conferred to them, can be found at this Hull & Hull blog.
Notwithstanding the fact that the testator in Stoor Estate sought to benefit worthy individuals/ causes, Justice Himel provided case law and authority that ‘worthy causes’ or ‘worthy objects’ are not trusts for charitable purposes.
Therefore, it was held that the gift over to “…any and all worthy individuals and or causes” is void for certainty of objects.
Today on Hull on Estates, Natalia Angelini and Noah Weisberg discuss the use of foundations, in particular the Toronto Foundation, as a charitable gifting option to consider with individuals who wish to provide to a charity.
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Today on Hull on Estates, Andrea Buncic and Noah Weisberg discuss the recent Supreme Court of Canada decision of Carter v. Canada and its relevancy to estate planning issues.
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Today on Hull on Estates, Noah Weisberg and Paul Trudelle discuss the recent Court of Appeal decision of Heston-Cook v. Schneider and the effects this has on cost awards in estate matters, including blended awards. Noah Weisberg and Paul Trudelle also discuss the Court of Appeal decision of Sawdon Estate v. Sawdon, which applies blended awards.
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Today on Hull on Estates, Noah Weisberg and Natalia R. Angelini discuss the recent Memorandum of Justice Brown in the Estate of Lorraine Coombs. Specifically, they discuss the applications of case management and summary judgement in estate litigation.
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