Tag: ontario

22 Sep

Application to Pass Accounts – How do you deal with complex issues and claims?

Stuart Clark Passing of Accounts Tags: , , , , , , , , , , , , , 0 Comments

The Application to Pass Accounts serves an important function in the administration of estates and trusts, providing the beneficiaries with the ability to audit the administration of the estate or trust and raise any concerns through their Notice of Objection.

The procedure that is followed for the Application to Pass Accounts is somewhat distinct from any other court process, with the process being governed by rule 74.18 of the Rules of Civil Procedure. These procedural steps include the filing of the “Notice of Objection” and the “Reply” to the Notice of Objection, processes and documents which are distinct to the Application to Pass Accounts. Although the Application to Pass Accounts process differs in certain ways from a more traditional Application, at its core the Application to Pass Accounts is still an “Application” and not an “Action”, with the process designed to be more summary in process as compared to the typical Action.

I have previously blogged about the procedural differences between an “Application” and an “Action”, and how things like Discovery and Affidavits of Documents, as well as calling witnesses to give oral evidence, are generally not available in an Application. The same generally holds true for an Application to Pass Accounts, with there generally being no Discovery process or witnesses called at the eventual hearing for the passing of accounts, with the summary process designed to be adjudicated on the paper record of the documents contemplated under rule 74.18.

Although the simplified and summary process intended for the Application to Pass Accounts may present many benefits to the parties, including allowing the beneficiaries to pose questions and objections to the trustee without having to resort to potentially prolonged and expensive litigation as provided in a typical Action, it could present some challenges if the claims that are being advanced are complex or seek significant damages as the process may not allow for the full record to be adequately explored.

If the claims or issues which are being advanced in an Application to Pass Accounts are complex, such as for example claims that the trustee was negligent or committed a breach of trust, the summary process designed for the typical Application to Pass Accounts may not provide the depth of procedural process that the claims may deserve. Under such circumstances the parties may seek to direct and/or convert the complex objections into a separate triable issue, thereby potentially opening up the procedural processes more typically reserved for an “Action” such as Discovery or the calling of witnesses to the issue.

The process by which certain objections are directed and/or converted into a separate “triable issue” is governed by section 48(4) of the Estates Act, which provides:

The judge may order the trial of an issue of any complaint or claim under subsection (3), and in such case the judge shall make all necessary directions as to pleadings, production of documents, discovery and otherwise in connection with the issue.”

Under section 48(4) of the Estates Act the court may direct any objection which fits under section 48(3) of the Estates Act, which includes allegations of breach of trust, to be separately tried before the court, with section 48(4) noting that the judge shall make necessary directions regarding pleadings, Discovery, and the production of documents for the objection.

If an individual wishes to direct an objection to be tried under section 48(4) of the Estates Act such an intention should be raised at the early stages of the Application to Pass Accounts, with an Order being sought which would specifically direct the objection(s) in question to be tried by way of Action. To the extent that such an Order cannot be obtained on consent a Motion may be brought regarding the issue, with the court also being asked to provide direction regarding the procedures to be followed for the triable issue.

Thank you for reading.

Stuart Clark

10 Sep

Substitute Decision-Making Disputes: The Best Interests of the Incapable is Key

Rebecca Rauws Power of Attorney Tags: , , , , , , , , , , , 0 Comments

I have previously blogged about Vanier v Vanier, a decision of the Ontario Court of Appeal relating to a dispute amongst attorneys, in which the Court of Appeal agreed with a statement by the motion judge that the attorneys had “lost sight of the fact that it is [the incapable’s] best interests that must be served here, not their own pride, suspicions, authority or desires”. Unfortunately, it is often the case that in disputes amongst family members over the management of an incapable family member’s care or property, the incapable’s interests may be overshadowed by the fight amongst the other members of the family.

The recent Ontario Superior Court of Justice decision in Lockhart v Lockhart, 2020 ONSC 4667, appears to be another similar situation.

The applicant, Barbara, and the respondent, Robert, are children of Mrs. Lockhart. Mrs. Lockhart was 89 years old at the time of the decision. A number of years before, she had contracted bacterial meningitis and had suffered some long-lasting effects that impacted her cognition. Mrs. Lockhart’s husband predeceased her on October 2, 2018. Prior to his death, he had made personal care and treatment decisions for Mrs. Lockhart when she was not able to do so herself. After Mrs. Lockhart’s husband’s death, Barbara was unable to locate a power of attorney for personal care for Mrs. Lockhart; accordingly, Barbara and Robert proceeded to make personal care decisions on Mrs. Lockhart’s behalf, jointly.

However, in December 2018, Robert arranged to have Mrs. Lockhart sign a power of attorney for personal care and a power of attorney for property naming him as her sole attorney (the “2018 POAs”). Barbara was not aware of the 2018 POAs, and was not involved in their preparation or execution. Barbara did not even become aware of the 2018 POAs until April 2020 when Robert revealed them to her in the midst of a dispute between Barbara and Robert relating to Mrs. Lockhart’s care. Barbara subsequently challenged the validity of the 2018 POAs on the basis that, among other things, Mrs. Lockhart was not capable of granting them.

The court found that the 2018 POAs were of no force and effect, and were void ab initio. The court was also asked to determine which of Barbara and Robert would be authorized to make decisions on Mrs. Lockhart’s behalf under the Health Care Consent Act, 1996 (the “HCCA”). Each of Barbara and Robert took the position that they should have sole decision-making authority.

Notably, the court stated specifically that “[t]his dispute has less to do with Mrs. Lockhart’s interests and more to do with a power struggle between two siblings.” Given this outcome, and the facts leading to the litigation, I found the solution arrived at by the court interesting. The court determined that both Barbara and Robert are authorized to make personal care, health care, and treatment decisions under the HCCA, on behalf of Mrs. Lockhart, jointly. It appears that the court was satisfied that both of Barbara and Robert would exercise that authority in Mrs. Lockhart’s best interests, notwithstanding the dispute between them that lead to litigation. Other than the major disagreement between Barbara and Robert that lead to the litigation, the court found that “it appears that they have, in the main, come to decisions that have been in Mrs. Lockhart’s best interest and have kept her safe.” This historic ability to make joint decisions seems to have been sufficient for the court to decide that Barbara and Robert should continue doing so going forward.

Thanks for reading,

Rebecca Rauws

 

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08 Sep

Older Adults and Capacity to make Decisions: Protection vs. Autonomy

Rebecca Rauws Elder Law Tags: , , , , , , , , , , , , , 0 Comments

As we age, many of us begin to experience the normal consequences of aging, including some memory loss. Unfortunately, many of us may end up suffering from Alzheimer’s and related dementias. As a result, capacity has become a bigger problem among seniors.

There are ways to manage decision-making for a senior who has lost capacity to make his or her own decisions about care or property. If the person executed a power of attorney, their attorney can step in. If there is no power of attorney, a guardian can be appointed by the court. However, the imposition of a substitute decision maker can be a significant restriction on an older adult’s liberty, and some seniors may resist that imposition.

An article in The Walrus earlier this year considered this issue, and the impact a finding of incapacity can have on a senior’s autonomy in Canada.

One of the concerns discussed in the article is that “some seniors find that, once declared incapable, they are unable to challenge the decision.” In Ontario, we have the Consent and Capacity Board, which is an independent tribunal that, among other things, reviews various determinations regarding an individual’s capacity. However, this is apparently a rarity in Canada. The only other similar body is located in the Yukon.

Another issue raised by the Walrus article is with the lack of a standardized system for assessing capacity. The person doing the assessment can vary (doctor, nurse, social worker, etc.), as well as the tests conducted. This is made even more complicated by the fact that there are differing levels of capacity for different tasks (e.g. making a Will, managing property, getting married, granting a power of attorney for personal care).

Unfortunately, the lack of attention paid to the issue of aging and capacity appears to be systemic. As cynically, but perhaps also realistically stated in the Walrus article: “It can seem like a great deal of attention is paid to other institutions that house vulnerable segments of the population, such as children in daycares. But there’s no future in aging; there is next to no potential that a senior might one day cure cancer or be the next prime minister. Reform in elder care may be desperately needed, but it hasn’t been forthcoming.”

There is a fine balance to be struck between restricting seniors’ autonomy, and protecting vulnerable people. A collaborative “supported decision-making model”, as discussed in the article may be one way of doing this. I hope that as more attention is drawn to these issues, there will be greater awareness, and increased progress and reform for our seniors.

Thanks for reading,

Rebecca Rauws

 

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05 Aug

Decision-making by an Attorney for Personal Care

Rebecca Rauws Power of Attorney Tags: , , , , , , , , , , , , , 0 Comments

The job of being an attorney for personal care for an incapable person is not an easy one. The attorney often has to make difficult decisions regarding an incapable person’s medical care and treatment, personal care, food, clothing, and shelter. A particularly difficult decision that can arise in the case of older adults is the decision of whether an older incapable person should be placed in a retirement or long-term care home.

I recently came across a decision that considered a personal care attorney’s decision to move his mother, Ann, into a long-term care facility. As set out in Corbet v Corbet, 2020 ONSC 4157, prior to the move, Ann had been living with her personal care attorney’s son (Ann’s grandson), and his spouse. The personal care attorney lived in the USA. The grandson and spouse were the defendants to an action brought by the personal care attorney, and the defendants had brought the motion that was dealt with in the decision. The motion sought an order that Ann return to live with the defendants.

The Corbet decision discussed the powers and duties of an attorney for property, as governed by the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Section 66 of the SDA provides that a personal care attorney must exercise his or her powers and duties diligently and in good faith. If the attorney knows of prior wishes or instructions of an incapable person, they shall make their decision in accordance with those prior wishes or instructions. If the attorney does not know of a prior wish or instruction, or if it is impossible to make the decision in accordance with the wish or instruction, the attorney shall make the decision in the incapable person’s best interests. Although making a determination of what is in the incapable person’s best interests can be difficult, the SDA does set out the factors that the attorney must consider, as follows:

  • the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;
  • the person’s current wishes, if they can be ascertained; and
  • the following factors:
    • (i) Whether the guardian’s decision is likely to,
      • improve the quality of the person’s life,
      • prevent the quality of the person’s life from deteriorating, or
      • reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.
    • (ii) Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.

Ultimately, the court determined that it was not prepared to grant the order sought by the defendants. Some of the factors that were determinative included the following:

  1. Ann had entrusted her only son as her attorney for personal care.
  2. The court should not attempt to micromanage an attorney’s day-to-day handling of an incapable person’s affairs unless there is clear evidence the attorney is not acting in good faith.
  3. Before making the decision to move Ann to the long-term care facility, the attorney consulted with Ann’s family doctor, and had a comprehensive assessment of the defendants’ home done by the LHIN case manager.
  4. Although Ann had expressed that she wanted to “go home”, the court found that Ann perceived her home as the home she had shared with her late husband, and not the defendants’ home.
  5. There was no evidence that the personal care attorney failed to consider the best interests criteria as set out above.
  6. There were allegations that the defendants had mistreated or neglected Ann, and that they had misused or misappropriated her money. As a result, it remained to be determined whether they were “supportive family members” with whom the attorney has a duty to consult under the SDA.

Attorneys for personal care would be well-advised to carefully consider their decisions, in light of the guidelines set out in the SDA, and to document their considerations in making decisions on behalf of an incapable person.

Thanks for reading,

Rebecca Rauws

 

These other blog posts may also be of interest:

04 Aug

When does an Attorney Accounting Period Start?

Rebecca Rauws Passing of Accounts Tags: , , , , , , , , , , , , 0 Comments

Sometimes there is a grey area when it comes to a person’s loss of capacity, and the time when his or her attorney for property first began to act on an incapable’s behalf. In such a situation, it can be difficult to determine the starting date for an attorney’s fiduciary accounting period.

The recent decision of The Public Guardian and Trustee v Willis at al, 2020 ONSC 3660, dealt with this kind of situation. One of the issues was whether the respondent should be required to pass his accounts for the period before he became the attorney for property for his mother, Mrs. Willis.

The respondent was his mother’s only living child, and was acting as her attorney pursuant to a power of attorney for property dated May 2, 2018. Mrs. Willis was assessed as incapable of managing her property in September 2018, but the decision notes that she had been “clearly suffering from some cognitive deficits prior to June 2018”.

The Public Guardian and Trustee (the “PGT”) sought to have the respondent provide an accounting back to January 1, 2015, because the respondent had arranged several mortgages on his mother’s behalf in that period. The respondent, however, only agreed to pass his accounts starting from May 2, 2018 when he became his mother’s attorney for property. One of the main reasons that the respondent did not want to pass his accounts prior to that period was due to the expense, because it was clear that Mrs. Willis was insolvent, and the respondent would likely have to personally bear the costs of passing his accounts. The PGT clarified during the hearing that it was not seeking court format accounts for the period from 2015-2018, but only “justifiable explanations of money coming in and out of his mother’s RBC account and how mortgage advances were spent plus all relevant disclosure.”

The court found that the respondent had assisted his mother with paying bills and arranging mortgages prior to the time that she was assessed as incapable. It was also noted in the decision that there was “no doubt” that even while Mrs. Willis was capable, she was unsophisticated, vulnerable, and relied on the respondent. The respondent also had access to his mother’s bank account before January 1, 2015.

The court held that, even if an individual is not specifically appointed in a fiduciary role (such as an attorney) one must look at the types of duties that the individual was carrying out to determine if they were acting in a fiduciary capacity. On this basis, the court found that the respondent had been acting as a fiduciary for Mrs. Willis for some time, and determined that he should provide detailed explanations of financial transactions upon the PGT’s request from January 1, 2015 to May 1, 2018 (in addition to the passing of accounts to which the respondent had consented starting from May 2, 2018).

Thanks for reading,

Rebecca Rauws

 

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31 Jul

Virtual Signing of Wills Extended in Ontario

Paul Emile Trudelle In the News, Wills Tags: , , , 0 Comments

In response to issues arising in the execution of Wills during the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney. Ontario Regulation 129/20. made under the Emergency Management and Civil Protection Act provided that the requirement that a testator or witness be present in each other’s presence for the making of a Will or Power of Attorney may be satisfied by means of audio-visual communication technology, with certain restrictions. See our blog on the virtual witnessing of Wills and Powers of Attorney, here.

Under the Reopening Ontario (A Flexible Response to COVID-19) Act (“the Reopening Ontario Act”), Orders made under the Emergency Management and Civil Protection Act that have not been previously revoked are extended and continued under the Reopening Ontario Act. The extension is for a period of 30 days after the Order is continued, subject to further extension.

The new Order, Ontario Regulation 129/20 formerly made under the Emergency Management and Civil Protection Act, but now continued under the Reopening Ontario Act can be found here.

The Reopening Ontario Act received Royal assent on July 21, 2020 and came into effect on July 24, 2020.

The power to extend or amend an Order ceases on the first anniversary of the day orders are continued (ie. July 24, 2021).

This would mean that the virtual witnessing of Wills and Powers of Attorney is extended until August 23, 2020, with the government having the power to further extend the provisions.

We will keep you posted.

Thanks for reading.

Paul Trudelle

09 Jul

Estate Litigation – Submission of Rights to the Court

Stuart Clark Estate Litigation Tags: , , , , , , , , , 0 Comments

Estate litigation exists in a somewhat unique corner of the litigation world for as a Will can potentially have numerous beneficiaries, each of whom could receive differing amounts from the estate, the potential individuals who could be impacted by any court decision can often extend beyond the parties actively participating in the litigation. As estate litigation can be both emotionally and financially expensive, if you are a beneficiary who only was to receive a relatively modest bequest of say $5,000, you may question whether it can be financially justified for you to retain a lawyer to actively participate in the litigation or whether you should just throw your hands up and not participate. Although the final decision of whether to participate will be case specific to the beneficiary in question, there may be a third option other than actively participating or simply not responding, being that you can formally “submit” your rights to the court.

The concept of “submitting” your rights to the court is in effect a formal declaration to the court that you will not be actively participating in the litigation but that you would still like to be provided with notice of certain steps. By formally submitting your rights to the court the plaintiff is required to provide you with written notice of the time and place of the trial, as well as a copy of the eventual Judgment. You are also personally insulated from any costs award that may be made in the proceeding (other than incidentally as a beneficiary of the estate should costs be awarded out of the estate).

The potentially most attractive incentive to formally submitting your rights to the court however may be that in the event any settlement is reached amongst the other parties that no Judgment may be issued implementing the settlement unless the court is provided with your consent to the settlement or an affidavit confirming that you had been provided with a copy of settlement and had not served and filed a “Rejection of Settlement“. Such a requirement could provide you with the opportunity to object to any settlement before it is implemented, potentially sidelining any settlement that you believe unfairly impacted your interest in the estate.

The process by which an individual can “submit” their rights to the court is governed by rule 75.07.1 of the Rules of Civil Procedure, with the individual submitting their rights to the court being required to serve and file a “Statement of Submission of Rights to the Court“.

Thank you for reading and stay safe and healthy.

Stuart Clark

07 Jul

Dependant Support – Quantum of Support

Stuart Clark Support After Death Tags: , , , , , , , , , 0 Comments

Yesterday I blogged about the recent Deleon v. Estate of Raymond DeRanney (“Deleon“) decision wherein an individual who was not the Deceased’s biological or adopted child was declared to be a dependant “child” of the Deceased in accordance with Part V of the Succession Law Reform Act (the “SLRA“) due to the Deceased having shown a “settled intention” to treat the Applicant as their child during their lifetime. Although my blog from yesterday went into some of the detail of what the court considered when determining that the Applicant was in fact a “child” of the Deceased who was entitled to support, it did not get into the quantum of support that the Applicant was entitled to receive as a “dependant child”.

The factors that the court is to consider in determining the quantum of support for a dependant are established by section 62 of the SLRA, and include:

  • the dependant’s current assets and means;
  • the assets and means that the dependant is likely to have in the future;
  • the dependant’s capacity to contribute to his or her support;
  • the proximity and duration of the dependant’s relationship with the deceased; and
  • the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living.

In Deleon the Deceased died intestate with one biological child leaving an estate valued at approximately $1.5 million, which under normal circumstances would be distributed solely to the biological child on an intestacy. Upon being declared a dependant “child” of the Deceased in accordance with Part V of the SLRA, the Applicant attempted to argue that she should equally share the Deceased’s estate with the biological child akin to if she was a biological child of the Deceased on an intestacy, an argument which, if accepted, would result in the Applicant receiving approximately $750,000 from the Deceased’s estate.

In support of her position that she should be entitled to receive 50% of the Deceased’s estate in support, the Applicant cites to Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, in which the court confirms that it can consider “moral” obligations and what is “adequate, just and equitable” under the circumstances when determining the quantum of support, and that the court is not necessarily limited to the factors delineated in section 62 of the SLRA. The Applicant also pointed to the accustomed standard of living which she had enjoyed while previously living with the Deceased.

Upon reviewing the jurisprudence in reference to the Applicant’s circumstances, Madam Justice Dietrich ultimately determines that the appropriate sum of support to be paid to the Applicant is the lump sum of $40,955, with such an amount being justified as being enough to get the Applicant through the remainder of her University degree, with the Applicant being required to be independent thereafter. Such an amount is of course notably less than the approximate $750,000 sought by the Applicant in the Application.

The Deleon case provides an excellent reminder that just because you are a “dependant” of the Deceased it does not necessarily follow that you will receive a significant sum in any support payment, as the court will consider your specific circumstances when setting the quantum of support.

Thank you for reading and stay safe and healthy.

Stuart Clark

06 Jul

Dependant Support – Can someone who is not your biological/adopted child be a dependant child?

Stuart Clark Support After Death Tags: , , , , , , , , , , , , , , , 0 Comments

The average “family unit” (if such a thing ever truly existed) is becoming harder to define in 2020. With the rise of concepts such as “co-parenting“, as well as the growing ubiquity of step-parents from second (or third, or fourth) marriages, the expectations and reality associated with the parent/child relationship is evolving. Although such an evolution is almost certainly predominantly for the better, it can create some unique complications should one of the “parents” die unexpectedly, particularly should they die without a Will. Such a scenario is exactly what was recently before the court in Deleon v. Estate of Raymond DeRanney (“Deleon“).

In Deleon, the Deceased died intestate with no married spouse and one biological child, such that the entirety of their estate would under normal circumstances be distributed to their biological child. The Applicant, who was not the Deceased’s biological child but was rather the child of the Deceased’s ex-girlfriend from approximately 20 years prior, commenced an Application for support under Part V of the Succession Law Reform Act (the “SLRA“) alleging that the Deceased had treated her as his “child” and had provided her with support during his lifetime. In support of such a claim, the Applicant cited to the fact that the Deceased had allowed her and her mother to reside with him for several years prior to his death even though the Deceased and her mother were no longer romantically involved, and that, although she was not residing with him at the time of his death, the Deceased was subsidizing her rent to the tune of approximately $500 per month. She also cited to the fact that the Deceased had historically paid for things such as the Applicant’s extra-curricular activities, summer school, groceries and vacations throughout the Applicant’s childhood, and had encouraged her to attend University which she was in the process of attending.

The definition of “child” within Part V of the SLRA includes someone who the deceased individual had a “settled intention” to treat as their child. As a result, if an individual can show that a deceased individual had a “settled intention” to treat them as their child, and the individual otherwise meets the remainder of the factors required to be a “dependant” of the deceased, the individual can receive support as a dependant child notwithstanding that they are not biologically related to or legally adopted by the deceased.

In considering whether the Applicant met such a “settled intention” definition in Deleon, Madam Justice Dietrich considers the factors delineated in Hyatt v. Ralph, which include:

  • did the “parents” pool their income into a joint account?
  • did the “parents” pay the expenses for all children out of this same account?
  • did the child in question refer to the man as “daddy” or the woman as “mommy”?
  • did the “parents” refer to themselves as “mommy” and “daddy”?
  • did the “parents” share the task of disciplining the child?
  • did the child participate in the extended family in the same was as a biological child?
  • was there a change in surname?
  • did the “parent” express to the child, the family and the world, either implicitly or explicitly, that he or she is responsible as a parent to the child?

Perhaps interestingly in the Deleon decision, although Madam Justice Dietrich found that the relationship between the Deceased and the Applicant did not generally meet any of the factors to be considered from Hyatt v. Ralph (the Applicant referred to the Deceased as “Uncle Raymond” who undoubtedly spoiled her but did not necessarily fulfill the “typical” parental role), Madam Justice Dietrich nonetheless found that the Deceased’s conduct in relation to the Applicant demonstrated a “settled intention” on the part of the Deceased to treat the Applicant as a “child”, and that as the Applicant otherwise would receive nothing from the Deceased’s estate on an intestacy she was entitled to support from the Deceased’s estate as the Deceased’s dependant “child”. In coming to such a conclusion Madam Justice Dietrich states:

In my view, [the Deceased’s] support of [the Applicant] in these ways rises above affection and generosity. Despite the atypical family relationships between [the Deceased, the Applicant’s mother, the Deceased’s biological child, and the Applicant], [the Deceased’s] support of [the Applicant] demonstrates his settled intention to treat her as a member of his unconventional family. I find that [the Applicant] is therefore a dependant for the purposes of the SLRA.”

Thank you for reading and stay safe and healthy.

Stuart Clark

11 Jun

The Tale of Carole Baskin and the Forged Will

Christina Canestraro Forged Wills Tags: , , 0 Comments

If you’ve been keeping up with pop-culture and the array of new Netflix shows recently released, then the name “Tiger King” should ring a bell. The outlandish and quirky Netflix mini-series documents eccentric Oklahoman former big-cat zookeeper, Joe Exotic, and his bitter rivalry with his arch-nemesis, Carole Baskin, owner of the Big Cat Rescue sanctuary in Florida. The series concludes with Joe Exotic receiving a 22-year prison sentence for attempting to murder Baskin. Surprisingly, that is not the narrative that caught people’s attention. Rather, viewers took to social media platforms with memes, tweets, and TikTok’s of fans wondering, “Did Carole Baskin kill her husband?”.

Throughout the series, Joe Exotic alleges that Baskin murdered her first husband, Don Lewis, and fed him to the tigers housed in their shared tiger sanctuary (yes, you read that correctly). The mini-series certainly raised suspicions regarding Lewis’ disappearance. Lewis was a millionaire, who disappeared some months after having filed a restraining order against his wife. Baskin ultimately inherited all of Lewis’ assets to the exclusion of his former wife and their two children. Due to the show’s popularity, and the public’s demand for answers, the case of Lewis’ disappearance was reopened by the Hillsborough County Police.

The latest development in the investigation of Lewis’ disappearance came from the Sheriff of the Hillsborough County Police, who advised that experts have determined that Lewis’ last will, under which Baskin was the sole beneficiary, was forged. Apparently, the forgery had been alleged when this case was first brought before Florida courts, although the judge preferred the evidence of Baskin’s expert who found that the signature was not forged. This blog is not intended to explore the veracity of these allegations. However, this news did spark my curiosity with respect to forged wills and their treatment in Ontario courts.

In Ontario, a will can be forged by tracing or forging a person’s signature on a will, removing pages from a will or substituting pages to change the will’s contents, or making amendments to a will after it has been signed without the knowledge or consent of the testator.

If an objector to a will alleges forgery, courts will rely on the evidence of expert examiners. Such was the case in Bayford v Boese, 2019 ONSC 5663, wherein the court relied on the expert evidence of a document examiner who had previously worked in state crime laboratories in the USA and for the FBI. The expert examined and compared several other documents that were known to be signed by the testator to determine whether they had been forged, and ultimately concluded that they had not.

If a will is found to be a product of forgery then it would be declared invalid and the court would seek to rely on the most recent prior will. There could also be criminal consequences that flow from a finding of forgery, pursuant to section 380(1)(a) of the Criminal Code.

It will be interesting to see if anything comes of this new allegation of forgery.

Thank you for reading!

Christina Canestraro

A special thanks to Sean Hess for his contributions to this post.

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