A couple of weeks ago, my colleague Noah Weisberg and I did a podcast about the recent Ontario Superior Court of Justice decision Re Vaudrey, 2019 ONSC 7551. But for those who prefer to read rather than listen, I thought I would provide a brief summary on the blog as well.
The testator in Re Vaudrey died in September 2018. Prior to his death, he had been married to Ethel Vaudrey. The testator and Ethel had been separated for a number of years, but had not divorced. Ethel predeceased the testator, passing away in 2007.
The testator and Ethel had two daughters, Sheila and Kristin. Sheila also predeceased the testator in 2013. She had never married and had no children. After the testator and Ethel separated, Kristin became estranged from the testator. The decision notes that Kristin described the testator as emotionally and verbally abusive.
Kristin was the only surviving family member of the testator.
The testator left a Will executed in 2005. The court was of the view that, based on its format and content, the Will did not appear to have been prepared by a lawyer.
The Will provided that Sheila was to be appointed as estate trustee, and inherit the residue of the testator’s estate, provided that she survived the testator by 30 days. If Sheila did not survive the testator for 30 days, the Will provided that Ethel was to be appointed as estate trustee, and inherit the residue. Again, however, this was conditional on Ethel surviving the testator by 30 days. As mentioned above, both Sheila and Ethel predeceased the testator.
The Will was witnessed by Sheila and another witness.
Lastly, the Will also specifically stated that “under no circumstances is any part of [the testator’s] estate to be transferred to [his] estranged daughter, Kristin P. Vaudrey, or to any of her descendants.”
Unfortunately for the testator, he had not set out in his Will how the residue of his estate was to be distributed in the event that both Sheila and Ethel predeceased him, as they did. The court found that the residue of the estate was to be distributed pursuant to the intestacy rules set out in s. 47 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). On this basis, Kristin was determined to be the sole heir-at-law of the residue. Accordingly, despite the testator’s wish that Kristin not inherit any part of his estate, his failure to include a gift-over clause with respect to the residue resulted in her inheriting the entire residue.
It is also interesting that Sheila was a witness to the Will. Pursuant to s. 12 of the SLRA, where a beneficiary witnesses the execution of a Will, the bequest to that beneficiary will be void. Even if Sheila had survived the testator, the gift of the residue to her would have been void in any event.
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Today’s blog is Part 2 in my discussion of a New Yorker article by Arthur Krystal that seeks to present a realistic view of aging. Yesterday I reviewed some of the factors in the article that pointed towards the idea that we improve as we age. Today I will review the points raised in support of what the author considers to be the “truth” about aging.
I think the following sentence really sums up an important (but somewhat bleak) point that the author is making: “There is, of course, a chance that you may be happier at eighty than you were at twenty or forty, but you’re going to feel much worse.”
The article considers the physical effects of aging, as well as mental ones, namely dementia. Although we continue to explore ways of detecting, predicting, and treating dementia, we do not yet have a cure for the disease.
The New Yorker article also summarizes a (possibly even more bleak) argument made in an essay published in The Atlantic in 2014, with the title “Why I Hope to Die at 75”. The author of that article, Ezekial J. Emanuel, argues that by age 75, most people will have a difficult time generating creative and original thoughts, or being productive. Emanual doesn’t plan on killing himself at 75, but states that he won’t take steps towards actively prolonging his life, such as cancer-screening tests.
Last year I blogged about another article that discussed aging, and the concept of how we can live better, now that we are living longer. That article considered the work being done related to anti-aging and the creation of products to make older people’s lives easier. I think this is a salient point given our aging population, and is also relevant to the points made in Krystal’s New Yorker piece. Although we can admit that there are physical challenges that arise with aging, there are also ways those challenges can be ameliorated, and work continues to be done in this area.
I admit that, at the present time, I have very little authority or personal experience with aging, as it is discussed in the article. While I certainly see the author’s point about the downsides of aging, I think I will choose to favour the more optimistic view as outlined in yesterday’s blog.
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In late 2019, an article in The New Yorker asked the question: “Why can’t we tell the truth about aging?” The author, Arthur Krystal, considers several aspects of aging, with what appears to be the aim of presenting a realistic portrait of what it is truly like to get older. I thought there were a lot of interesting points mentioned, so in Part 1 of this blog (today) and Part 2 (tomorrow), I will be considering some of those points.
For today’s blog, I will review some of the author’s points relating to the idea that we improve as we age (although the author certainly does not appear to embrace this view). Tomorrow’s blog will consider some of the more negative views and aspects of aging.
The article starts off by listing a number of recent books about aging, and compares it to the more popular view from about 50 years ago that aging is something “we do not care to face”. These days, the trend has moved towards celebrating aging, and looking at it in a positive and optimistic light. The literature is clearly capturing this view, with titles such as “Better with Age: The Psychology of Successful Aging”.
Some of the authors of the books mentioned state that the older brain works “in a more synchronized way” and the structure of the brain is altered with aging in ways that boost creativity.
There is also an interesting discussion about whether we get happier as we age. This concept seems to make sense if we consider notions such as being more comfortable in our own skin, and experiencing less social anxiety as we get older. The article mentions a study indicating that happiness over the course of our lives follows a U-shaped curve where we are happiest as children and in old age (and least happy in the middle of our lives). Apparently, however, there has been some question as to the accuracy of this curve for several reasons, the simplest one being that happy older people may be more likely to participate in happiness surveys than seniors who feel miserable, unsatisfied, and apathetic.
I quite like the sentiment expressed by Helen Small, a professor at the University of Oxford, as summarized in the article, that “our lives accrue meaning over time, and therefore the story of the self is not complete until it experiences old age—the stage of life that helps us grasp who we are and what our life has meant.”
Thanks for reading and I hope you will join me for part 2 tomorrow!
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This past weekend I had the great pleasure of seeing the movie Knives Out by Rian Johnson. For those of you who have not yet seen it I would highly recommend it, especially for those interested in estate law. Although I will try my best to avoid any significant spoilers for those who have not yet seen it, if you don’t want to know anything about the movie before seeing it you should stop reading this blog now.
The plot of Knives Out offers some interesting considerations for those interested in estate law, as it centers around the possible murder of the patriarch of an affluent family, with the alleged motive for many of those accused being that he was going to cut them off and write them out of his Will. While I was watching the movie I couldn’t help but analyze the cases of some of those accused, and whether there were estate law related options that would have been available to them that would not require them to commit murder (I promise that I am fun at parties and that this job has not ruined me).
Knives Out gets into a surprising amount of detail regarding certain estate law concepts, discussing such concepts as “undue influence” in relation to those who would have benefited from the new Will, as well as the “slayer rule” which would result in any individual who was involved in the murder not being entitled to receive a benefit from the estate for public policy reasons. The movie also gets into the concept of “testamentary capacity“, and whether the deceased would have had the capacity to draft the new Will which would have cut the various individuals off.
While watching the movie the one thing that kept running through my mind was that most of the accused family members would appear to have fairly strong arguments that they were dependants of the deceased even if they were cut out of his Will. The movie makes it fairly clear that the deceased was financially supporting a majority of his family members, with his threats to cut them off financially forming the foundation of the motivation for why they may or may not have killed him.
If the deceased had indeed cut these family members out of his Will, and this matter took place in Ontario, there would appear to be a fairly strong argument that those family members that were cut out of the Will were dependants of the deceased under Part V of the Succession Law Reform Act, insofar as the deceased was providing support to them immediately prior to his death and he did not make adequate provision for them in his Will. If these family members were found to be dependants of the deceased, the court could make an order providing for their support from the deceased’s estate regardless of whether they were left anything in his Will. Although I will concede that a long and drawn out court case where various family members assert they are dependants of the deceased is probably a less interesting film than an Agatha Christie style murder-mystery, if Knives Out were real life it is unlikely that many of the family members would ultimately receive nothing from his estate (assuming, of course, they were not involved in his death).
Thank you for reading.
Yesterday I blogged about the limited circumstances in which the court will interfere with a trustee’s discretionary decisions while administering a trust. Simply put, as confirmed by the Ontario Court of Appeal in Fox v. Fox Estate in citing to the old English decision of Gisborne v. Gisborne, although generally speaking the court will not interfere with a trustee’s decisions while administering a trust, they may do so under limited circumstances and intervene if the trustee’s decision was made with what is known as “mala fides” which roughly translates as “bad faith”.
While Gisborne v. Gisborne makes it clear that the court will not interfere with a trustee’s discretion unless there is “mala fides“, it does not provide much guidance regarding what would constitute “mala fides” or “bad faith” on the part of the trustee. In Fox v. Fox Estate, in recognizing that there is little guidance with respect to what constitutes “bad faith”, the Court of Appeal cites to the article “Judicial Control of Trustees’ Discretions” by Professor Maurice Cullity (as he then was) in trying to provide some guidance for what will constitute “bad faith”. In summarizing his position with respect to what will constitute “mala fides” on the part of a trustee in exercising their discretionary authority, Prof. Cullity provides the following summary:
“Yet, it seems clear that the mala fides which will justify the intervention of the court must extend a considerable distance beyond the requirement of personal honesty. If the doctrine of fraud on a power permits the courts to intervene to strike down attempts to exercise a power which is vested in a person who is not a trustee, the jurisdiction over trustees must be at least as extensive. In very broad terms, that doctrine invalidates any attempt to exercise a power which is intended to achieve a purpose other than that for which the power was conferred. It is unquestionable that fraud in this sense is within the concept of mala fides.” [emphasis added]
Prof. Cullity’s definition of “mala fides“, whereby he advises that the court’s utilization of such a doctrine is intended to invalidate “any attempt to exercise a power which is intended to achieve a purpose other than that for which the power was conferred“, could offer some guidance on the kind of circumstances in which the court will interfere with a trustee’s discretion. It would appear that the fundamental question to be considered by the court in determining whether a decision was made in “bad faith” is in effect whether the decision is in keeping with the original intention of the trust. If the answer is “yes”, the court will not interfere with the discretionary decision by the trustee. If the answer is “no”, the circumstances may be such that the court will interfere with the decision on the grounds that it was made in “bad faith”.
Thank you for reading.
The use of a “discretionary trust” that grants the trustee with the absolute discretion to determine when and if a distribution is made to a beneficiary, and in what amount, is a fairly common estate planning tool. If you are a beneficiary of a trust which provides the trustee with such broad discretion you may question whether there is anything that you can do prior to the final distribution to question the discretionary decisions that have been made by a trustee, and whether there are circumstances in which the court will intervene to overturn a trustee’s discretionary decision. The short answer is that while the court is generally reluctant to interfere with a trustee’s discretionary decisions, there are certain limited circumstances in which they will intervene and overturn a trustee’s decision.
The leading decision in Ontario concerning when the court will interfere with a trustee’s discretion is Fox v. Fox Estate. In considering when the court may interfere with a trustee’s discretion, the Court of Appeal provides the following commentary:
“The entire question of the degree of control which the courts can and should exercise over a trustee who holds an absolute discretion is filled with difficulty. The leading case, or at least the case to which reference is almost always made, is Gisborne v. Gisborne (1877), 2 App. Cas. 300 (H.L.). It stands for the proposition that so long as there is no ‘mala fides’ on the part of a trustee the exercise of an absolute discretion is to be without any check or control by the courts.” [emphasis added]
Fox v. Fox Estate cites to the English authority of Gisborne v. Gisborne for the proposition that, so long as there is no “mala fides” on the part of the trustees in exercising their discretion, the court will not interfere with a trustee’s discretion. In Gisborne v. Gisborne, Lord Cairns provides the following commentary with respect to when the court may interfere with any discretionary decision undertaken by a trustee:
“My Lords, larger words than those, it appears to me, it would be impossible to introduce into a will. The trustees are not merely to have discretion, but they are to have “uncontrollable”, that is, uncontrolled, “authority”. Their discretion and authority, always supposing that there is not mala fides with regard to its exercise, is to be without any check or control from any superior tribunal.” [emphasis added]
Simply put, the court will generally not interfere with a trustee’s discretionary decisions unless they were exercised with “mala fides“. “Mala fides” roughly translates as “bad faith”, such that the principle from Gisborne v. Gisborne can be summarized as providing that so long as there is no “bad faith” on the part of the trustee in making a discretionary decision the court will not interfere with such a decision.
Thank you for reading.
In the recent decision of Gabourie v Gabourie, 2019 ONSC 6282, the court considered a motion for (among other things) interim support by the deceased’s separated spouse.
The applicant wife had separated from her spouse (now deceased) approximately two years prior to his death in March 2018. At the time of the deceased’s death, he and the applicant had been in the process of negotiating the terms of their separation and divorce. They had already entered into an interim separation agreement, which dealt with the proceeds from the sale of their matrimonial home. After the deceased’s death, the applicant and the respondent (who was the deceased’s sister, estate trustee, and sole beneficiary) were able to agree on the issue of equalization of net family property, and a payment was made to the applicant. The issue of spousal/dependant’s support remained outstanding.
The applicant sought a lump sum interim support payment of $50,000.00. Ultimately, the court awarded the applicant interim support of $30,000.00.
Providing Support or Under a Legal Obligation to Provide Support
The fact that the spouses had been separated at the time of the deceased’s death was considered as part of the court’s determination of whether the applicant was a “dependant” (specifically as to whether the deceased was providing support to her, or was under a legal obligation to provide support to her, immediately before his death) and whether the deceased made adequate provision for the applicant’s support.
The court found that there was no evidence that the Deceased had been actually providing support to the applicant prior to his death. They had been separated for two years; in that time the deceased had several health complications and lost his job. He was not supporting the applicant, nor was the applicant relying on him for support. However, spousal support remained an issue to be resolved as part of the separation between the deceased and the applicant. The court stated that there was no evidence that the applicant had waived her right to spousal support, and that, as a married spouse, the deceased was under a legal obligation to support the applicant.
Amount of Interim Support
In arriving at the amount of interim support awarded to the applicant, the court considered the financial circumstances of the deceased’s estate, and of the applicant. Based on preliminary disclosure from the respondent, the Deceased’s estate had a value of approximately $650,000.00, as well as an insurance benefit of $75,000.00. The applicant’s net worth was around $220,000.00, and she earned only a modest part-time income. The applicant also had a significant amount of debt relative to her assets, which the applicant submitted she was required to incur as she was not receiving spousal support and was unable to meet her expenses.
However, the court was mindful of the amount of support sought relative to the value of the estate. The applicant sought $50,000.00, stating that this amount was sought for legal fees that she had incurred in pursuing her dependant’s support claim.
The court was disinclined to award the applicant the full amount sought given the stage of the proceeding, and that it was not yet known whether the applicant would succeed on her application, stating that it was nearly seven percent of the value of the deceased’s estate.
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Recently, the Advance Care Planning in Canada initiative, led by the Canadian Hospice Palliative Care Association, released a new resource to assist with advance care planning and choosing a substitute decision maker.
The “Speak Up” initiative includes two complementary resources.
One resource is the “Living Well, Planning Well” legal toolkit. The development of this toolkit was funded by Health Canada. The legal toolkit was designed to be used by lawyers and their clients, to encourage conversations and reflections about clients’ wishes for advance care planning, and putting appropriate arrangements in place.
The other resource is a public toolkit. It provides plain language information regarding the laws and processes with respect to advance care planning and substitute decision-making throughout Canada. This is helpful as the laws can vary between the provinces and territories.
It is very important to consider advance care planning, and to implement plans as early as possible. In particular, everyone should consider executing a power of attorney, to ensure that they are able to select the person responsible for making decisions on their behalf when they are no longer capable. Without a power of attorney, in Ontario, the ultimate decision as to who will make decisions on an incapable person’s behalf (other than those captured by the Health Care Consent Act, 1996), is left to the court. The court takes such matters very seriously, but most people prefer that the choice of substitute decision maker be their own.
Something else to contemplate is speaking with your family and friends, especially with your named attorney, regarding your wishes. As we enter the holiday season, and plan gatherings with our friends and family, consider taking this opportunity to have a conversation in this regard.
You can review Speak Up’s post about the release of their toolkit here.
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One way that dispositions such as a gift during one’s lifetime, or a Will, may be challenged is on the basis of undue influence. However, allegations of undue influence are often difficult to prove. Additionally, due to the nature of these types of allegations, which often call into question the character of the alleged influencer, they are taken seriously by the court. As a result, parties should be cautious in alleging undue influence, and should be virtually certain that they will be able to back up their claims.
A recent example of this was in the costs decision of Nimchick v Nimchick, 2019 ONSC 6653. A mother and daughter had claimed that their son/brother (“B”) had devised a plan to financially exploit his mother for the benefit of himself, his spouse, and his son, (“J”). The circumstances leading to this allegation involved the mother adding J’s name to a bank account belonging to the mother, for the purpose of paying for J’s student loans, with any excess going to B. The trial judge dismissed the mother and daughter’s claim, finding that the mother intended to gift the money to B and J, and that B had not exerted undue influence over his mother.
The defendants, who were wholly successful, sought their substantial indemnity costs, in the amount of approximately $147,000.00. The court noted that the defendants’ partial indemnity costs of the action were approximately $100,000.00.
In making its determination as to costs, the court considered the circumstances in which elevated costs are warranted, including where the unsuccessful party has engaged in reprehensible, scandalous, or outrageous behaviour that is worthy of sanction. The court found that the mother and daughter’s behaviour had been of this nature. This conclusion seemed to have largely been based on the court’s finding that the mother and daughter advanced baseless allegations of wrongdoing and failed to prove their claims of civil fraud and deceit. Overall, the court preferred B’s evidence to the evidence from the mother and daughter.
The court ultimately awarded costs to the defendants in the amount of $100,000.00. This amounted to the defendants’ partial indemnity costs, according to a note included in the decision. Accordingly, it does not appear that the award against the plaintiffs was necessarily on an elevated scale. The costs awarded were, however, $15,000.00 more than the amount submitted by the plaintiffs as being appropriate.
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Consider yourself warned. Notwithstanding the relatively mundane title referenced above, the within blog contains a (somewhat mild all things considered) rant about something that troubles me to my very core (more of a mild annoyance really). Individuals who confuse and conflate the procedural steps and processes of Applications and Actions. Turn back now ye of mild stomachs.
There are two basic ways that civil matters proceed before the court in Ontario, either by Application or by Action. The Action is the more common of the two, and is the stereotypical image that most people probably have when thinking of something being heard before the court. Evidence is put before the court in an Action by witnesses sitting in the witness box, with the lawyers cross-examining and putting questions to the witnesses much like they do in your favourite legal television show. Applications, on the other hand, proceed only on a written record, with any evidence that is put before the court being contained in affidavits that were sworn by the various parties before the hearing date. To the extent that there are any cross-examinations on these affidavits they will generally have taken place before the hearing, with the Judge only being provided with copies of the transcripts and not witnessing the cross-examinations first hand as they would with an Action.
The estates litigation world exists in this somewhat unique corner of the civil litigation world, as many of the statutes under which our claims are advanced provide that the claims are to be commenced by way of Application and not Action. Although this in theory should result in these proceedings advancing on affidavit evidence alone, as parties often believe that there may be a strategic advantage to having the matter heard by way of Action (i.e. a sympathetic witness appearing in person before a Judge rather than simply in writing) parties will often seek to convert their proceedings from an Application to an Action at an early stage. I imagine that this is probably where most of the confusion stems from when individuals conflate the procedural steps of Applications and Actions, with the Order Giving Directions often being issued at a time the matter is still an Application yet providing directions for how an Action is to proceed.
The procedural process and obligations imposed upon parties participating in an Application are very different than those participating in an Action. There are no “Affidavit of Documents” or “Discoveries” in an Application, with the only evidence and documentation that is generally produced being that contained in the affidavits (subject to any undertakings or further directions from the court). Conversely, once a matter has been converted into an Action from an Application the affidavits that may have historically been filed are in a way irrelevant, as the Judge should in theory no longer have them available at the ultimate hearing of the matter with any evidence now being produced “viva voce” (i.e. in person). Once a matter has been converted into an Action from an Application the process that is to be followed is that of an Action, with the parties no longer being expected to serve and file any responding affidavits, but rather the more typical pleadings and documentation required for an Action such as a Statement of Defence or an Affidavit of Documents.
So please. I beg of you. Do not ask me when my client will be producing their Affidavit of Documents in an Application to Pass Accounts or when my client will be producing their responding affidavit after a matter has been converted into an Action.
Thank you for reading.