Tag: The Public Guardian and Trustee
On December 7, 2020, the court decision in the Estate of Rezaee was released where a holograph will was later found in the winter coat of a friend and beneficiary. Facts from the decision include that the deceased, Kamran Rezaee was born on March 15, 1962, in Iran. He moved to Canada in 1983. Mr. Rezaee was diagnosed with pancreatic cancer and died on August 10, 2018. He had no family in Canada. His estate was valued at approximately $3.5 million at the time of the application.
On March 20, 2018, Kamran Rezaee attended a dinner party hosted by his friend, Mr. Naftchi to celebrate the Persian New Year. The dinner was attended by four other friends. At some point during the party, Mr. Naftchi testified that Mr. Rezaee wrote and signed in his own handwriting in Farsi a holograph will on a piece of paper. The writing has been translated as follows: “ I, Kamran Rezaee, hereby give all my wealth and property to my close friend Mr. Siamak Naftchi. (signed) Kamran Rezaee, March 20, 2018.” This paper was written and signed in front of all of the dinner guests. Mr. Naftchi testified that Mr. Rezaee wrote this holograph will knowing that he had terminal cancer. Mr. Rezaee had no family living in Canada, and his family in Iran were all deceased. After signing the will, Mr. Rezaee put the will in his pocket and went into Mr. Naftchi’s bedroom to take a nap, which he did every one or two hours due to his health. In November 2018, Mr. Naftchi found the holograph will in one of his own winter jackets. He believes that Mr. Rezaee put the will in the jacket pocket when he went to sleep in the bedroom on March 20, 2018. When Mr. Rezaee died, Mr. Naftchi made the necessary funeral arrangements and paid for the funeral. After obtaining a professional translation of the holograph will, Mr. Naftchi applied to the court for a Certificate of Appointment of an Estate Trustee with a Will.
It is interesting to note the steps that were required to be taken in this case by the Court. On June 18, 2019, the Court issued an endorsement requiring Mr. Naftchi to prove the holograph will “in solemn form in an open court” and that the court will require independent witnesses as to Mr. Rezaee’s handwriting and signature, and that the Public Guardian and Trustee shall be served with the application. The endorsement required Mr. Naftchi to notify Mr. Rezaee’s next of kin and serve them with all court documents. Mr. Naftchi was required to publish in a local newspaper and national newspaper, in Canada and Iran, as the next of kin may have rights. The Public Guardian and Trustee was served with all of the relevant material, and counsel appeared to advise that their office took no position on the relief sought.
Mr. Naftchi published advertisements in Canada and in order to have the notice published in a national newspaper in Iran, Mr. Naftchi retained a lawyer in Iran to file an application there, for issuance of an inheritance restriction certificate for the deceased. They certified that Mr. Rezaee did not have any legal heirs in Iran. The Court in Canada was also provided with: the affidavit of Arian Nida confirming that he was present when the holograph will was written and signed by Mr. Rezaee; the affidavit of Nahid Lebasi confirming that he was well acquainted with the deceased’s handwriting and believes that the holograph will and signature were in the handwriting of the deceased; and Mr. Naftchi was sworn as a witness and provided oral evidence in support of his application. Given that the proceeding was uncontested the Court also followed up with additional questions. It was then ordered that the holograph will of Kamran Rezaee, dated March 20, 2018, was a valid holograph will and was probated.
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The recent decision of Boyd v. Thomson,  O.J. No. 4796 (Ont. SCJ) examined section 69(6) of the Substitute Decisions Act, 1992 , which requires that someone bringing a court application to be appointed guardian serve certain family members of the incapable person.
The case involved a guardianship application under s. 22 of the SDA by a man whose wife had suffered brain damage in a car accident.
Although he had consulted with his wife’s parents and siblings and they consented to the application, the applicant did not want them to serve the application materials because it would result in the disclosure of financial and other personal information and he and his wife and had always been very private people. The woman’s parents and siblings were fine with not reviewing or being served with the application record, and had filed consents to the application stating as much. They had also been provided with a notice of the hearing and chose not to attend.
The Public Guardian and Trustee took the position that s. 69(6) of the Substitute Decisions Act made service on certain family members mandatory. Section 69(6) provides that the notice and accompanying documents shall be served on, amongst others, the allegedly incapable person’s parents and any siblings who have reached age of majority.
The court considered whether the word “shall”, as it appeared in the section, should be interpreted as being mandatory or permissive and, in any event, whether the recipient of the documents can waive service.
Here, the court found that the right to service in order to give adequate notice to the family members belongs to the family members, not to the incapable person. Since it is the right of the family members, then it is open to them to waive their right to service. Any consent to a waiver of this type should be given effect by the court.
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