Tag: succession law reform act
Listen to A Review of Dependant Support Claims
This week on Hull on Estates, David Smith and Jonathan Morse review some of the recent podcasts and hone in on some of the evidentiary requirements of a common-law spousal relationship as it relates to dependant support claims under the Succession Law Reform Act. They look at some recent case law and some of the requirements under the Ontario statute.
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Listen to Dependant Relief.
This week on Hull on Estates, Natalia Angelini and Craig Vander Zee discuss dependant relief and reference a variety of cases that utilized the Succession Law Reform Act.
In this week’s episode of Hull on Estates, David Smith and Diane A. Vieira discuss the issues surrounding spousal exclusion from the will of the deceased and how to challenge this exclusion.
Click "Continue Reading" to read the transcribed version of this podcast.
In Zhao v. Ismail Estate , O.J. No. 5221, the Court considered a motion before it brought by the plaintiffs in the action seeking, amongst other things, (i) certain directions and disclosure of information prior to a scheduled mediation, (ii) an Order for interim support under s.64 of the Succession Law Reform Act (“SLRA”), (iii) the removal of the defendant as Estate Trustee of the subject Estate, and (iv) an Order granting the interim payment of legal costs from the Estate to the plaintiffs.
Pursuant to an Order of the Court dated December 15, 2005, the proceeding had been converted from an Application to an ordinary action in light of the contested issues of fact and credibility involved. The plaintiffs are the mother (91 years old) and brother (55 years old) of the testator, both of whom reside in China. The testator died on June 4, 2004 and left her entire Estate valued in the range of $1.7 million to her solicitor and friend, the defendant, who at the time of the motion was the Estate Trustee of the testator’s Estate.
The Statement of Claim in this proceeding, dated February 6, 2006, claims, inter alia, that the testator’s Will dated January 28, 1992 and Codicils dated April 30, 2004 and May 14, 2004 are invalid as the testator lacked testamentary capacity and/or was subject to undue influence or that she lacked knowledge and approval of the contents. In addition, amongst other relief, the plaintiffs claim, in the alternative, that the testator failed to make adequate financial provision for them, as dependants, under Part V of the SLRA.
The Court disagreed with the defendant’s submission that the Court was not authorized to appoint an Estate Trustee in place of the Estate Trustee already appointed. The Court held that the defendant, as sole beneficiary under the Will, was in a clear conflict of interest in carrying on as Estate Trustee and that pursuant to Rule 75.04 of the Rules of Civil Procedure and s.5 of the Trustee Act, the Court had such power.
Listen to "The Distribution of Assets"
Read the transcribed version of "The Distribution of Assets"
In Episode #62, Ian and Suzana discuss the treatment of assets in second marriages with children. They cover the necessity of proper communication and documentation of intent, as well as the impact of the Succession Law Reform Act over the distribution of assets.
Ian and Suzana also discuss the strategy of using trusts to pass on assets in a controlled and managed way to desired beneficiaries.
Section 64 of Ontario’s Succession Law Reform Act ("SLRA") allows for interim support to a dependant’s relief applicant "in need of and entitled to support".
The language of the section can cause difficulty to applicants due to the need to prove entitlement. Entitlement is often in issue based on disputed facts, so the Estate Trustee defending an application can argue that only a trial can resolve that question.
Often dependant’s relief applicants have little or no means to support themselves on an ongoing basis, let alone fund litigation. Denial of interim support to applicants can have serious repercussions on their day-to-day lives and can give the Estate Trustee considerable economic leverage.
Re Puliver (1982), 39 O.R. (2d) (High Court of Justice) described the problem succinctly:
"I must pay heed to the requirement (under section 64) that the applicant be in need of and entitled to support"…
"Such an interpretation would effectively deprive dependants of any interim relief if any question were raised as to entitlement except as to quantum."
Moving on to a solution, Justice Van Camp decided that:
"where the applicant has put forward substantial evidence to support her claim as a dependant, and that the testator was domiciled in Ontario, application for interim relief should be heard even if [status as a dependant] are in issue on the final hearing of the substantive application."
Re Puliver provided much needed ammunition when arguing for interim support for alleged dependants where entitlement is not admitted by the Estate Trustee.
Thanks for reading.
In Ontario, a testamentary document that is entirely made in the handwriting of a deceased and signed by him or her may be considered a valid will without the necessity of witnesses. But where such a document has two lines with the word “witness” under each line at its end, and where no one has signed as a witness, does the document still meet the requirements of a valid will?
This was the fact situation which presented itself in the recent Ontario case: Re Atherton Estate. The Court concluded that, while there was no question that the document met the formal validity requirements of a holograph will*, the surrounding circumstances suggested that the deceased intended the document to be a draft that would not take effect until it had been typed out and re-executed by the deceased in the presence of two witnesses.
The wrinkle was that, when the relative to whom the deceased had given the handwritten documents returned to visit him in hospital the next day with the typewritten copies, the deceased exhibited no intention to execute the will in its typewritten form.
David M. Smith
*Succession Law Reform Act, R.S.O. 1990, C. S. 6
During Hull on Estate and Succession Planning Episode #47, Ian and Suzana review four possible flash points to keep in mind when dealing with family law issues. These topics include the family business, the matrimonial home, the treatment of debt and the domestic and family contract.
Ian and Suzana specifically discuss the legal effects of the domestic and family contract upon death and support considerations reviewing the Succession Law Reform Act, Section 62 and 63.
Continuing with our discussion of the mechanics and technical aspects of execution of a will, I now turn to the signing and witnessing of the will.
Section 4(1) of the Succession Law Reform Act *(“SLRA”) provides that, except in the case of the will of a member of forces on active service, or in the case of a holograph will, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator. The requirement that the will be “signed” has been loosely interpreted, with the intention of the deceased being determinative. Courts have accepted wills where:
- the will bears the signature of the testator;
- the will bears part of the signature of the testator;
- the will bears the initials of the testator;
- the will bears a mark made by the testator intended to represent the testator’s name (even in situations where the testator is able to write his name, or in situations where the mark of a physically handicapped testator is guided by someone else;
- the will is impressed with the stamp of the testator;
- the testator signs the will using an assumed name;
- the testator signs the will using her title (eg. “Mother”);
- the testator signs the will using her name from a previous marriage;
- the will is signed by another person at the instance of the testator (signature by an amanuensis)
The onus of proving due execution is on those propounding the will. The burden is on the propounder on the balance of probabilities. The position of the signature is important. In addition to the reference in s. 4(1) that the will be signed “at its end”, s. 7 of the SLRA also impacts on the validity of the will and the position of the signature.