Tag: testamentary disposition

08 Apr

Can an Attorney for Property sever a joint-tenancy in real property?

Stuart Clark Power of Attorney Tags: , , , , , , , , , , , , , , , , , 0 Comments

It is often said that an Attorney for Property can do anything on behalf of the grantor’s behalf except make a will. This is on account of section 7(2) of the Substitute Decisions Act (the “SDA“), which provides:

The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will.” [emphasis added]

Although at first glance it would appear that the potential tasks that an Attorney for Property could complete on behalf of a grantor are almost absolute, with the Attorney for Property being able to do anything on behalf of the grantor except sign a new will, in reality the tasks that an Attorney for Property may complete relative to the grantor’s estate planning is more restrictive than this would suggest at first glance. This is because the definition of “will” in the SDA is defined as being the same as that contained in the Succession Law Reform Act (the “SLRA“), with the SLRA in turn defining “will” as including not only typical testamentary documents such as a Last Will and Testament or Codicil, but also “any other testamentary disposition“. As a result, the stipulation that an Attorney for Property can do anything on behalf of the grantor “except make a will” would include not only a restriction on the Attorney for Property’s ability to sign a new Last Will and Testament or Codicil on behalf of the grantor, but also a restriction on the Attorney for Property’s ability to make “any other testamentary disposition” on behalf of the grantor.

It is fairly common for individuals such as spouses to own real property as joint-tenants with the right of survivorship. When one joint-owner dies ownership of the property automatically passes to the surviving joint-owner by right of survivorship, with no portion of the property forming part of the deceased joint-owner’s estate. Although such an ownership structure may make sense when the property is originally purchased, it is not uncommon for circumstances to arise after the property was registered (i.e. a divorce or separation) which may make one of the joint-owners no longer want the property to carry the right of survivorship. Should such circumstances arise, one of the joint-owners will often “sever” title to the property so that the property is now held as tenants-in-common without the right of survivorship, making efforts to attempt to ensure that at least 50% of the property would form part of their estate should they predecease the other joint-owner.

Although severing title to a property is fairly straight forward while the owner is still capable, circumstances could become more complicated should the owner become incapable as questions may emerge regarding whether their Attorney for Property has the authority to sever title to the property on behalf of the grantor, or whether such an action is a “testamentary disposition” and therefor barred by section 7(2) of the SDA.

The issue of whether an Attorney for Property severing title to a property is a “testamentary disposition” was in part dealt with by the Ontario Court of Appeal in Champion v. Guibord, 2007 ONCA 161, where the court states:

The appellants argue that the severing of the joint tenancies here constituted a change in testamentary designation or disposition and is therefore prohibited by s. 31(1) of the Substitute Decisions Act because it is the making of a will.

While we are inclined to the view that the severance of a joint tenancy is not a testamentary disposition, we need not decide that question in this case. Even if it were, we see no error in the disposition made by the application judge, because of s. 35.1(3)(a) of the Substitute Decisions Act.” [emphasis added]

Although the Court of Appeal does not conclusively settle the issue in Champion v. Guibord, the court appears to strongly suggest that they are of the position that an Attorney for Property severing a joint-tenancy is not a “testamentary disposition” within the confines of the SDA.

Thank you for reading.

Stuart Clark

09 Oct

Nobel’s Prized Last Will

Noah Weisberg Beneficiary Designations, Charities, Estate Planning, General Interest, Wills Tags: , , , , , , , 0 Comments

I recently came across an interesting article, found here, pertaining to the creation of the Nobel Prize.  As a result of a Will challenge, such a prestigious award almost never came to be.

The famed Swedish chemist, Alfred Nobel, is best known for inventing dynamite, as well as creating the ‘Nobel Prize‘ which awards annual prizes for outstanding work in the fields of physics, chemistry, physiology or medicine, literature, economics (as of 1969), and the promotion of peace.  Nobel passed away without children on December 10, 1896 in San Remo, Italy, leaving a Will dated November 27, 1985.

Nobel executed his Will while in Paris (allegedly, without consulting a lawyer), with the majority of his wealth set aside for the establishment of a prize.  Specifically, the Will required that after certain specific bequests, Nobel’s entire remaining estate was to be used to endow:

“…prizes to those who, during the preceding year, shall have conferred the greatest benefit to mankind. The said interest shall be divided into five equal parts, which shall be apportioned as follows: one part to the person who shall have made the most important discovery or invention within the field of physics; one part to the person who shall have made the most important chemical discovery or improvement; one part to the person who shall have made the most important discovery within the domain of physiology or medicine; one part to the person who shall have produced in the field of literature the most outstanding work in an ideal direction; and one part to the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses“.

The Will also stated the location of where the prizes were to be awarded, as well as the institutions who would be responsible for assigning these prizes.

Apparently, not only was the Will challenged by two nephews who sought to have the Will set aside (grounds unknown), but the creation of the Nobel Prize was met with disapproval by King Oscar II of Sweden on the basis that Nobel’s wishes were unpatriotic, and bypassed Sweden’s interests.  Interestingly, the peace prize was to be awarded by the Norwegian Parliament at a time when friction between Norway and Sweden were at an all-time high.  Further, the various institutions had not been consulted to ensure they were prepared to take on such a prominent role in assigning the prizes.

Notwithstanding this, the first Nobel Prize was awarded on December 10, 1901 in Stockholm and Oslo, with such prizes continuing to be awarded.  Please see Jennifer Hartman’s blog, here, which further explored this interesting issue.

Noah Weisberg

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