Tag: Paul Trudelle
Hull on Estates #617 – Crossing the Threshold for a Will Challenge
This week on Hull on Estates, Paul Trudelle and Fred Tonelli discuss the decision and corresponding order in Morrish v Katona ONSC 3805, and review the threshold to challenge a will and compensation due to an examined drafting solicitor and his or her lawyer.
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Hull on Estates #612 – Independent Adult Children and Varying Wills
This week on Hull on Estates Paul Trudelle and Sydney Osmar discuss moral claims for relief under BC’s Wills, Estates and Succession Act.
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Hull on Estates #607 – Capacity to Instruct Counsel and the Appointment of a Litigation Guardian
This week on Hull on Estates, Paul Trudelle and Arielle Di Iulio discuss the test for capacity to instruct counsel and the appointment of litigation guardians in the recent decision of Susan Eng v. Elizabeth Eng, 2021 ONSC 464.
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Hull on Estates #603 – Updates to the Rules of Civil Procedure
This week on Hull on Estates, Paul Trudelle and Nick Esterbauer review upcoming changes to the Rules of Civil Procedure as set out in O. Reg. 689/20, effective January 1, 2021.
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Hull on Estates #594 –An Expansion of Pecore in Calmusky v Calmusky
In today’s podcast, Paul Trudelle and Garrett Horrocks discuss the court’s decision in Calmusky v Calmusky, which deals with the application of principles from Pecore v Pecore to designated assets.
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Zombies and Severed Parts
“This is a case about a ‘zombie’ deed.”
So begins the decision in Thompson v. Elliott Estate, 2020 ONSC 1004, a decision of Justice MacLeod-Beliveau.
The case addresses the effect of “zombie” deeds, and whether such a deed can result in the severance of a joint tenancy.
Justice MacLeod explains that a “zombie” is a folklore reference to a person who is reanimated through magic after their death. A “zombie deed” is a transfer of an interest of land that is registered after the death of the grantor as if the grantor was alive.
In the case in question, Husband and Wife owned a home as joint tenants. Wife signed an Acknowledgement and Direction, transferring her interest in the home to herself, for the purposes of severing the joint tenancy. However, through lawyer inadvertence, the transfer was not registered with the Land Registry Office until after Wife’s death.
If the joint tenancy was severed, Wife’s half-interest in the home would pass through her estate to her children from a prior marriage. If the joint tenancy was not severed, it would pass to Husband.
Husband argued that the registration was improper, and therefore did not sever the joint tenancy.
The court agreed that the registration of the transfer after Wife’s death was improper. The lawyer should not have registered it. In many cases, the registration would be rejected by the Land Registry Office. However, the LRO is often not able to determine whether the registration is improper. In the case before the court, the lawyer registering the transfer had falsified many of the “law statements” required when registering the transfer.
Although the transfer was improperly registered, the court found that the joint tenancy was, however, actually severed. A joint tenancy can be severed by a transfer of a joint interest to oneself. Whether a joint tenancy is severed is a question of fact based on the evidence.
Of note is the holding that it is the “delivery” of the transfer and not the actual registration of the transfer that determines whether the joint tenancy is severed. The court held that there was sufficient evidence to establish that Wife clearly intended to sever the joint tenancy by signing the Acknowledgment and Direction and by giving immediate and unconditional instructions to her lawyer to register the transfer.
Zombie deeds are sometimes used to avoid probate taxes and fees. The deceased signs the Acknowledgment and Direction before death, but, on title, remains owner of the property. After death, the deed is registered to transfer title to intended beneficiaries. This practice is improper.
Thanks for reading. Have a great weekend.
Hull on Estates #590 – Substantial Compliance vs. Strict Compliance
In today’s podcast, Paul Trudelle and Kira Domratchev discuss the British Columbia Supreme Court’s decision in Hubschi Estate (Re), 2019 BCSC 2040, and the factors considered by the Court in holding that the document found on the deceased’s computer was a Will in accordance with the curative provisions of the relevant legislation.
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Hull on Estates #581 – Minimal Evidentiary Threshold in Will Challenges
On today’s podcast, Paul Trudelle and Rebecca Rauws discuss the recent decision of Naismith v Clarke, 2019 ONSC 5280, and the minimal evidentiary threshold test for will challenges.
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Hull on Estates #577 – Hearsay Evidence and Summary Judgment
In this week’s episode of Hull on Estates, Paul Trudelle and Garrett Horrocks discuss the use of hearsay evidence in a motion for summary judgment, and the Ontario Court of Appeal decision of Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447 (CanLII).
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Hull on Estates #572 – Will Challenges and Mistake of Fact
This week on Hull on Estates, Paul Trudelle and Christina Canestraro discuss Cavanagh et al. v Sutherland et al., in which the Ontario Superior Court of Justice addresses questions of fact and law related to motions for summary judgment and mistake of fact.
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