Listen to The Absentee Act
This week on Hull on Estates, Christopher Graham and David Smith talk about The Absentee Act and some of the different scenarios that it applies to.
Listen to The Business of Being an Estate Trustee.
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the business side of being an Estate Trustee and talk about what to do with assets.
Listen to the deemed undertaking rule.
This week on Hull on Estates, Paul and Allan discuss the deemed undertaking rule and its application to estate matters.
For the coming week my blog will deal with the topic of contingency fees in estate litigation. This is a relatively new topic in the Province of Ontario. Contingency fees were only recently allowed, raising interesting issues in terms of the lawyer-client relationship and access to justice.
In the context of tort law (private injury), contingency fees are fairly well understood by the public in most North American jurisdictions. Although these fees were not allowed in the Province of Ontario until recently, certainly the public perception is that in private injury cases very often contingency fee arrangements, even in Ontario, have been formally or informally in practice for some time.
In any case, the Law Society of Upper Canada and the Provincial Legislature have now decided that contingency fees are acceptable in Ontario making it the last Canadian Province, and one of if not the last jurisdictions in North America to allow the practice.
No review of the area of dependant’s relief is complete without considering the leading Ontario Court of Appeal decision in Cummings v. Cummings (on the application for support, see (2004), 5 E.T.R. (3d) (81) (Ont. S.C) (Cullity, J.); on the appeal to the Ontario Court of Appeal, see (2004) 5 E.T.R. (3d) (97) (Ont. C.A.).
As a result of Cummings v. Cummings, the Court has forced the Estate’s Bar to reconsider matters of support under Part V of the Succession Law Reform Act ("SLRA").
Historically, claims relating to support of dependants under Part V of the SLRA were a fundamental restriction on testamentary power.
As to the question of the power of the Court itself, section 58 (1) of the SLRA confers on the Court the ability to make an order for support where a deceased has not made adequate provision for the proper support of his/her dependants. In McSween v. McSween ((1985), 21 E.T.R. 195 (Surr.Ct.)), Justice Carnwarth sets out the appropriate guidelines in considering "adequate provision for the proper support of a dependant".
The case of Cummings v. Cummings was a most difficult one for the judges to determine as the facts were somewhat unusual and were as follows:
- Bruce Norman Cummings (the "deceased") died on June 22 1998, survived by his first wife, Mary Anne, whom he married in 1968, and from whom he was separated in 1986 and from whom he was divorced in 1992.
- They had two adult children, Paul, 28, and Elizabeth, 22, both of whom were dependants. Paul was 24 years of age at his father’s death and was seriously and permanently disabled to the extent that it would take many times the value of all of the assets of the estate, both real and notional (as clawed back pursuant to section 72(1)(d) of the SLRA), to properly support him for the rest of his life. The deceased was under an obligation to provide support by Court order to Paul.
- His daughter, Elizabeth, was eighteen years of age at her father’s death and was attending university and was entitled to support under the Court order as well.
- The deceased and his second wife, Ruta, commenced living together in 1988 and were married in 1997.
- At the time of the divorce from his first wife, the deceased was earning approximately $300,000 per year and his employment was terminated in 1994.