Tag: Propounder of Will
The general rule, one that most people are probably familiar with when they think of a Will, is that the testator has to have the requisite capacity in order to be able to execute it. But what does that mean?
Generally, it means that a person should be of sound mind and understanding and have sufficient capacity to appreciate the various dispositions of property that would be put into effect with his or her execution of the Will. In other words, the testator must:
(1) understand that they are giving their property to one or more objects of his or her regard;
(2) have the capacity to comprehend the extent of their property and the nature of the claims of others to whom they are giving nothing under the Will.
In the case of a deceased who committed suicide, a question that may arise is whether a person who is about to commit suicide has the appropriate testamentary capacity to be able to execute a Will?
In that regard, it is important to remember that the onus is on the person who is propounding the Will – in other words applying to the court for an order that the Will is valid. In the usual course, there is certainly no presumption against the testamentary capacity of a testator. Indeed, it is quite the opposite. However, in cases where a proposition is made that a death (suicide) note is the last valid will and testament of a testator, it is more likely that someone may object. That is especially the case where an expected beneficiary is disinherited under such a circumstance.
As soon as capacity is called into question, the onus lies on the party propounding the Will to affirm testamentary capacity.
Suicide, in itself, does not equate to testamentary incapacity – although it is a circumstance that may be considered. In fact, a testator may have testamentary capacity even if they are not of entirely sound mind. That means that prior to committing suicide, a person can very well have testamentary capacity. If that is the case, then a death note can be considered a Holograph Will, which in Ontario, in accordance with section 6 of the Succession Law Reform Act, has the following requirements in order to be valid:
(1) It must be entirely in the testator’s hand writing; and
(2) It must be signed by the testator.
There is no requirement for witnesses in the case of a Holograph Will and it must be that the testator intended to dispose of their property after death.
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When a person accepts the role of Estate Trustee, it is a common assumption that they will be indemnified for any expenses incurred as a result of the administration of the Estate. This includes legal fees, which are typically recoverable from the Estate assets and take priority over distributions to beneficiaries. However, this is not always the case.
The denial of legal fees of an Estate Trustee has been ordered when all or a portion of the legal fees has been incurred to protect the personal interest of the Estate Trustee. This was the case in Etobicoke Human Society v. Rinaldi, 2015 CarswellOnt 20495, 14 E.T.R. (4th) 86 (Ont. S.C.J.). In this particular case, the Estate Trustee’s interests in propounding the Will were twofold. Not only did he have a fiduciary duty to propound the Will but also stood to gain a personal financial benefit from the Estate if the Will was successfully propounded.
The Estate and Trusts Reports recently published “Etobicoke Human Society v. Rinaldi: A Case Comment” written by Ian Hull and Suzana Popovic-Montag (the “Case Comment”), which interestingly, addresses the Court’s finding that an Estate Trustee does not have a duty to propound a Will when the testator’s capacity is challenged and therefore is not entitled to indemnification of legal fees.
I encourage you to read the Case Comment as it provides an excellent overview of the common law principles relating to an Estate Trustee’s duty to propound a Will and the underlying purpose for providing indemnification for reasonable legal costs.
You may also be interested to read: Solicitor as Trustee: Indemnification for Legal Fees
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READ THE TRANSCRIBED PODCAST HERE
During this podcast on suspicious circumstances, we discussed the following:
(i) the general concept of “suspicious circumstances” and what amounts to such circumstances;
(ii) the onus of proof on a propounder of a will and an alleger of undue influence;
(iii) the meaning of the phrases “the true will of the deceased”, and the “righteousness of the transaction”;
(iv) the rule in Barry v. Butlin; and
(v) the Supreme Court of Canada’s decision in Vout v. Hay. ——–