Tag: toronto

09 Jul

Estate Litigation – Submission of Rights to the Court

Stuart Clark Estate Litigation Tags: , , , , , , , , , 0 Comments

Estate litigation exists in a somewhat unique corner of the litigation world for as a Will can potentially have numerous beneficiaries, each of whom could receive differing amounts from the estate, the potential individuals who could be impacted by any court decision can often extend beyond the parties actively participating in the litigation. As estate litigation can be both emotionally and financially expensive, if you are a beneficiary who only was to receive a relatively modest bequest of say $5,000, you may question whether it can be financially justified for you to retain a lawyer to actively participate in the litigation or whether you should just throw your hands up and not participate. Although the final decision of whether to participate will be case specific to the beneficiary in question, there may be a third option other than actively participating or simply not responding, being that you can formally “submit” your rights to the court.

The concept of “submitting” your rights to the court is in effect a formal declaration to the court that you will not be actively participating in the litigation but that you would still like to be provided with notice of certain steps. By formally submitting your rights to the court the plaintiff is required to provide you with written notice of the time and place of the trial, as well as a copy of the eventual Judgment. You are also personally insulated from any costs award that may be made in the proceeding (other than incidentally as a beneficiary of the estate should costs be awarded out of the estate).

The potentially most attractive incentive to formally submitting your rights to the court however may be that in the event any settlement is reached amongst the other parties that no Judgment may be issued implementing the settlement unless the court is provided with your consent to the settlement or an affidavit confirming that you had been provided with a copy of settlement and had not served and filed a “Rejection of Settlement“. Such a requirement could provide you with the opportunity to object to any settlement before it is implemented, potentially sidelining any settlement that you believe unfairly impacted your interest in the estate.

The process by which an individual can “submit” their rights to the court is governed by rule 75.07.1 of the Rules of Civil Procedure, with the individual submitting their rights to the court being required to serve and file a “Statement of Submission of Rights to the Court“.

Thank you for reading and stay safe and healthy.

Stuart Clark

07 Jul

Dependant Support – Quantum of Support

Stuart Clark Support After Death Tags: , , , , , , , , , 0 Comments

Yesterday I blogged about the recent Deleon v. Estate of Raymond DeRanney (“Deleon“) decision wherein an individual who was not the Deceased’s biological or adopted child was declared to be a dependant “child” of the Deceased in accordance with Part V of the Succession Law Reform Act (the “SLRA“) due to the Deceased having shown a “settled intention” to treat the Applicant as their child during their lifetime. Although my blog from yesterday went into some of the detail of what the court considered when determining that the Applicant was in fact a “child” of the Deceased who was entitled to support, it did not get into the quantum of support that the Applicant was entitled to receive as a “dependant child”.

The factors that the court is to consider in determining the quantum of support for a dependant are established by section 62 of the SLRA, and include:

  • the dependant’s current assets and means;
  • the assets and means that the dependant is likely to have in the future;
  • the dependant’s capacity to contribute to his or her support;
  • the proximity and duration of the dependant’s relationship with the deceased; and
  • the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living.

In Deleon the Deceased died intestate with one biological child leaving an estate valued at approximately $1.5 million, which under normal circumstances would be distributed solely to the biological child on an intestacy. Upon being declared a dependant “child” of the Deceased in accordance with Part V of the SLRA, the Applicant attempted to argue that she should equally share the Deceased’s estate with the biological child akin to if she was a biological child of the Deceased on an intestacy, an argument which, if accepted, would result in the Applicant receiving approximately $750,000 from the Deceased’s estate.

In support of her position that she should be entitled to receive 50% of the Deceased’s estate in support, the Applicant cites to Supreme Court of Canada’s decision in Tataryn v. Tataryn Estate, in which the court confirms that it can consider “moral” obligations and what is “adequate, just and equitable” under the circumstances when determining the quantum of support, and that the court is not necessarily limited to the factors delineated in section 62 of the SLRA. The Applicant also pointed to the accustomed standard of living which she had enjoyed while previously living with the Deceased.

Upon reviewing the jurisprudence in reference to the Applicant’s circumstances, Madam Justice Dietrich ultimately determines that the appropriate sum of support to be paid to the Applicant is the lump sum of $40,955, with such an amount being justified as being enough to get the Applicant through the remainder of her University degree, with the Applicant being required to be independent thereafter. Such an amount is of course notably less than the approximate $750,000 sought by the Applicant in the Application.

The Deleon case provides an excellent reminder that just because you are a “dependant” of the Deceased it does not necessarily follow that you will receive a significant sum in any support payment, as the court will consider your specific circumstances when setting the quantum of support.

Thank you for reading and stay safe and healthy.

Stuart Clark

07 May

How Important is it to Provide Evidence of Urgency During COVID-19?

Rebecca Rauws Uncategorized Tags: , , , , , , , , , , 0 Comments

As a result of the COVID-19 pandemic, pursuant to the Notice to the Profession, the courts are presently restricted to hearing mainly urgent matters. For civil and commercial matters, this includes “urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing.” There is also a broad ability for the court to hear any other matter that it deems necessary and appropriate to be heard on an urgent basis, but these matters will be strictly limited.

In a recent decision, Weidenfeld v Parikh-Shah, 2020 ONSC 2401, the court considered two urgent motions brought by the plaintiff and the defendants, respectively. The defendants sought to have monies that had been paid into court several years ago, paid out from court. The plaintiff sought, among other things, an order prohibiting the payment out of the monies. The decision did not provide details of the background of the litigation between the parties.

The court stated that the parties’ first step is to establish that their respective motions are, in fact, urgent. The court provided some guidance as to what is needed in this regard:

“The obligation is on the moving party to provide cogent, particular and specific evidence to show the court that the relief requested is urgent. Speculative, supposition or theoretical evidence is not good enough. The present environment and limited use of judicial resources mandate that the urgency must be real and immediate.”

Unfortunately for the parties in this case, the court found that their affidavit evidence did not provide cogent evidence to satisfy the court that the relief sought was urgent. The reason for which the defendants had brought the motion seeking to have money paid out of court was not set out in the decision.

The court did consider the category of urgent matters where “immediate and significant financial repercussions may result”, and specifically mentioned (a) matters that may put a person in financial jeopardy; (b) the funding of a business, business venture or construction project, failing which the financial viability of the project is in jeopardy; and (c) the necessity of a person to have resources to pay expenses or an order for the health and safety of a person; as issues that would meet the test of “immediate and significant financial repercussions”.

In the current circumstances, we are continually adjusting to new ways of doing things. This includes bringing court proceedings. Based on the Weidenfeld v Parikh-Shah decision, it is clear that parties will need to provide clear and sufficient evidence to satisfy the court as to the urgency of the matter in order for the court to hear the proceeding while court operations are restricted.

Thanks for reading,

Rebecca Rauws

 

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05 May

Are Virtual Wills a Good Idea?

Rebecca Rauws Estate Planning, Wills Tags: , , , , , , , , , , 0 Comments

As we know, due to the COVID-19 pandemic, Ontario has passed emergency legislation allowing for Wills and powers of attorney to be executed and witnessed virtually, and in counterparts. This legislation will remain in effect for the duration of the declared emergency. Although Premier Doug Ford recently announced a plan for reopening Ontario, the timeline for doing so is still vague, and it’s unclear when the emergency will be declared to be at an end. Once the emergency is over, the normal rules for execution of Wills and powers of attorney, as set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26, and the Substitute Decisions Act, 1992, S.O. 1992, c. 30, will once again govern how such documents may be validly executed.

Before coronavirus became such a pressing concern, there was some discussion in the United States, of allowing Wills executed electronically to be considered valid testamentary documents. According to this article in The New York Times, entitled “A Will Without Ink and Paper”, at the time the article was published in October 2019, some states already had laws to allow e-signatures on Wills, and others were looking to adopt similar laws this year.

In the US, the Uniform Law Commission has proposed the Uniform Electronic Wills Act, which is intended to serve as a model for states who wish to enact such legislation. The law would allow testators to complete the entire Will-making and execution process online, without a lawyer or notary present. There are already online services, currently serving states that already have laws allowing electronic Wills, which provide a platform for the creation of these digital Wills.

According to The New York Times article, the process of creating an electronic Will involves a testator creating a Will online, and then having a video-conference call with a notary. The notary will review the document, ask questions of the testator, notarize it, and send it back.

Although the concept of electronic Wills seems convenient, the costs may ultimately outweigh the benefits. As one lawyer quoted in the article states, signing a Will “is not like getting toilet paper delivered by Amazon instead of going to a supermarket…This is a solemn thing that people don’t do every day.” The “inconvenience” of consulting a lawyer, having a Will professionally drafted, and executed in the traditional way, will likely be worth the trouble for most testators, particularly when you consider that this is not a task that needs to be done repeatedly, at frequent intervals (like going to the grocery store to buy toilet paper).

The article mentions a number of points as to why electronic Wills may not be such a great idea. Without a lawyer’s involvement, there is a heightened risk for undue influence to go undetected. Testators with significant assets that may be structured in complicated ways, or who have unique family situations, such as a blended family, are not likely to be well-served by the creation (let alone the execution) of a Will online, without estate planning advice from a lawyer.

Desperate times call for desperate measures, and it is helpful to have alternate methods of executing Wills and powers of attorney in these unprecedented times. But when life goes back to normal, I think we can be comfortable with the return to the “old-fashioned” way of executing Wills and powers of attorney. Although some may consider the process to be cumbersome, the added protection for testators, and the comfort of an estate plan that takes into account each testator’s unique situation, is worth the price.

Thanks for reading,

Rebecca Rauws

 

You may also enjoy these other blog posts:

04 May

What are the Risks of Virtually Witnessing a Will or Power of Attorney?

Rebecca Rauws Estate Planning, Power of Attorney, Wills Tags: , , , , , , , , , , , , , 0 Comments

Natalia Angelini recently blogged about some helpful tips from LawPRO on how to minimize the risk when virtually witnessing Wills and powers of attorney. On April 24, LawPRO posted another helpful article about the risks of “renting out” your signature as a virtual witness.

The emergency legislation requires that one of the witnesses to a Will that is executed by means of audio-visual communication technology (which now temporarily meets the Succession Law Reform Act, R.S.O. 1990, c. S.26 requirement that the testator and witnesses be “in the presence of” each other), be a Law Society licensee. This means that some of us may be asked to be witnesses to a Will or power of attorney that we did not prepare ourselves. However, as LawPRO points out, simply being a witness does not necessarily mean that we will not be held responsible if there are problems with the Will or power of attorney.

Some of the issues that may arise could include the following:

  • Problems with the Will or power of attorney not being executed properly, in accordance with the requirements for due execution and the specific requirements of virtual execution pursuant to the temporary legislation.
  • The Will or power of attorney not reflecting the testator or grantor’s wishes. This may arise if a testator or grantor prepares their own Will or power of attorney from an online service or kit, resulting in a document that is likely not tailored to the testator or grantor’s particular situation, financial circumstances, and wishes.
  • Technical errors in the document, such as the omission of a residue clause, which can drastically impact the distribution of the testator’s assets.

LawPRO has provided some tips for how to protect yourself if you are asked to be a witness to a Will or power of attorney that you did not prepare (although the tips seem equally applicable if you did prepare the document in question):

  • Take detailed notes.
  • Send a reporting letter following the execution of the document and confirm the scope of your retainer.
  • Record the signing (with the client’s permission).

You may also consider having the testator or grantor sign a limited retainer agreement, before you witness the Will or power of attorney, which explicitly sets out that you have been engaged only for the purpose of witnessing the document, and not to review it or provide any legal advice.

Thanks for reading, and stay safe!

Rebecca Rauws

 

These other blog posts may also be of interest:

09 Apr

E-Courts during Covid-19 – What happens to the “open court” principle?

Stuart Clark General Interest Tags: , , , , , , , , , , , 0 Comments

The way that we practice law has shifted rapidly over these past couple of weeks as we social distance ourselves. This includes the adoption of electronic means of communication such as video conferencing for things that would have seemed impossible only a couple of weeks ago such as the witnessing of Wills or the commissioning of affidavits. There has also been a significant expansion of the courts hearing matters virtually, with the court currently hearing urgent matters virtually through the use of  video conferencing or conference calls with the scope of what is being heard appearing to be expanded.

Although, generally speaking, I believe that most legal practitioners would likely be in agreement that the court and/or the various administrative bodies have responded fairly quickly to implementing new electronic methods and means of practicing law under trying times, this does not necessarily mean that the shift to the more virtual form of practicing law is not without its hiccups or concerns.

One of the areas that may need further consideration is the application of the “open court” principle if hearings are to shift to being heard virtually. It is generally accepted that a fundamental principle of our justice system is that the courts are open to being attended by anyone in the general public, with the court only restricting the general public’s access to attend and/or review a matter under very limited circumstances. As matters shift to being heard virtually, with a potential attendee to a video and/or telephone conference likely needing an access code to attend the matter, is there the risk that the “open court” principle could be impacted?

The Toronto Star recently reported about the steps and efforts that they were having to take to still be provided with electronic access to matters before the court during the pandemic. Although the article notes that they were having difficulty being provided with access for certain matters, it noted that they had been successful in obtaining electronic access to matters in others. Hopefully as time progresses any issues are able to be worked out.

One unknown element is whether any of these changes will become permanent after the pandemic has subsided. If elements such as virtual hearings should become more permanent steps will likely need to be taken to ensure that as part of the more permanent shift to virtual and electronic hearings that the “open court” principle is not lost.

Thank you for reading and stay safe and healthy.

Stuart Clark

07 Apr

Estate planning during COVID-19 – Is now the ideal time for an estate freeze?

Stuart Clark Estate Planning Tags: , , , , , , 0 Comments

We have blogged over these past couple of weeks about the novel issues which have arisen with the drafting and execution of  Wills during the COVID-19 pandemic. Although we remain hopeful that there will be guidance and/or legislative changes from the government soon regarding how to address issues such as the witnessing of Wills for individuals who are in quarantine or self-isolation, a recent article from Dale Barrett in Lawyers Daily notes that it may not all be doom and gloom surrounding estate planning during the COVID-19 pandemic, as the recent significant drop in the stock market could make it an ideal time for certain individuals to complete an “estate freeze”.

An estate freeze at its most basic accomplishes exactly what the name implies, insofar as it “freezes” the value of an individual’s assets at a particular date and time prior to their death, with any “future growth” on the assets being attributed to someone else (often the individual’s children). The use of an estate freeze is often done as a tax planning tool, with the underlying rationale being an attempt to reduce the potential taxes associated with the deemed disposition of their assets upon their death, which is accomplished by “freezing” the value of the assets at their current value such that the growth is not as great as it otherwise may have been (assuming the asset would continue to grow in the future). Although the structure that is required to accomplish this is somewhat complicated and will require the involvement of professionals, in a very basic overview it is typically accomplished by having the individual create a new company that will ultimately hold the assets being “frozen”, with two classes of shares being created the first which is retained by the individual implementing the freeze and fixed at the value of the assets on the day the of the freeze, with the second class of shares being attributed any “gain” in value of the assets after the freeze attributed to someone or something else other than the individual carrying out the freeze (often ultimately benefiting their children). The implementation and steps required is more complicated and nuanced than the description above suggests, and will almost certainty require the involvement of professionals to ensure that the individual does not go offside complex tax rules, but you get the basic idea.

Although the availability and potential use of an estate freeze is not for everyone, the recent drop in the stock market associated with COVID-19 could create a potential advantage and incentive for people considering an estate freeze to do so now as they could potentially “freeze” the value of their assets at a lower value than they otherwise may have been able to. If you are considering an estate freeze you may wish to speak with a professional now about whether it may be an opportune time to do so and to ensure that it is properly implemented.

Thank you for reading and stay safe and healthy.

Stuart Clark

06 Apr

Filing probate applications during the COVID-19 pandemic

Stuart Clark Estate & Trust Tags: , , , , , , , , , 0 Comments

The reduced hours and filing capabilities of the court during the COVID-19 pandemic have raised some interesting questions surrounding the filing of probate applications. Although the court’s direction to file court materials by mail is likely of no concern for a majority of matters, as a probate application could contain the original executed copy of a Will as well as a potentially significant bank draft for any estate administration tax, you would likely be rightly hesitant to place such documents in the mail under the current circumstances for fear that they may be lost.

The potentially good news for those needing to file probate applications with the Toronto court is that it is our current understanding that the Toronto court is allowing probate applications to be filed in person at the court office daily between the hours of 10:00 am and 12:00 noon, and again from 2:00 pm to 4:00 pm. Although these filing capabilities and times are of course subject to change, at least for the time being those in Toronto appear to be able to file probate applications in person without having to concern themselves with the possibility of the application being lost in the mail. Those needing to file probate applications in jurisdictions outside of Toronto should check to see if they too are making an exception to allow probate applications to be filed in person and not by mail.

In the event that it does not appear that it will be possible to file the probate application in person, such that the probate application would likely need to be filed by mail, the individual wishing to file the probate application should seriously consider whether there is an urgent need to file the probate application or whether it could wait until the courts have fully re-opened. If you are advising a client in such a situation, you should clearly explain what would happen in the event that the original Will was lost, and that an application to prove a copy of the lost will would be necessary (together with the added time and expense). Although the presumption that the lost will was destroyed by the testator with an intention of revoking it could likely easily be overcome by the fact that the possession of the Will could be traced to after the testator’s death, there would still be added time and expense of needing to bring the lost will application.

In the event that the client does still decide to proceed with filing the probate application by mail, one way to potentially reduce some of the risk may be to have any probate fees paid by trust cheque from the law firm and not by bank draft. Although in the event that the application materials were lost in the mail the lost will application would likely still be required, at least the concern associated with losing an original bank draft (and potentially the associated funds) is lessened as a trust cheque should more easily be cancelled. Multiple notarial copies of the original Will should also likely be made prior to placing it in the mail.

Thank you for reading and stay safe and healthy.

Stuart Clark

24 Mar

Tools to Help Manage your Estates Practice during COVID-19

Rebecca Rauws Estate Planning, In the News Tags: , , , , , , , , , , , , 0 Comments

We have previously blogged about NoticeConnect’s Canada Will Registry. The Will Registry allows lawyers and law firms to register their clients’ estate planning documents. Other lawyers are then able to search the Registry for the Will of someone who has passed away. The Registry alerts the lawyer who registered the Will of the search, and the lawyer can decide whether to disclose the existence and location of the Will.

On Tuesday, Premier Doug Ford released a list of essential businesses, which included lawyers, meaning that law firms may remain open during the shut-down of non-essential businesses in Ontario. That being said, we are still being encouraged to maintain social distancing, and many of us are working from home to try to help prevent the spread of COVID-19.

Working from home can present a unique set of challenges for solicitors with an estate planning practice, given the volume of original documents that must be stored, organized, updated, and maintained. Records may be kept partially, or entirely by paper records, which are physically located at the office, and inaccessible from home.

The Will Registry can be a helpful tool in organizing estate planning documents electronically, in order to reduce or eliminate issues with accessing records and information when working remotely.

NoticeConnect recently posted this blog setting out how the Will Registry can help professionals work from home. For instance, one of the tools mentioned is the ability to attach electronic copies of documents, such as Wills, to your registered records. This would allow you, and any staff who have access to your digital Will vault, to access and review estate planning documents. This may be helpful in a situation where a client contacts you seeking advice as to whether their Will needs to be updated; you would not be required to go into the office in order to review the client’s Will. There are also organizational tools, which can help with searching, sorting, and updating your records.

In these uncertain and constantly changing times, it is useful to consider any tools that may help us adapt and maintain our practice.

Thanks for reading and stay safe!

Rebecca Rauws

 

These other blog posts may also be of interest to you:

06 Feb

How Important is it to Include a Residuary Gift-over Clause in your Will?

Rebecca Rauws Wills Tags: , , , , , , , , , 0 Comments

A couple of weeks ago, my colleague Noah Weisberg and I did a podcast about the recent Ontario Superior Court of Justice decision Re Vaudrey, 2019 ONSC 7551. But for those who prefer to read rather than listen, I thought I would provide a brief summary on the blog as well.

The testator in Re Vaudrey died in September 2018. Prior to his death, he had been married to Ethel Vaudrey. The testator and Ethel had been separated for a number of years, but had not divorced. Ethel predeceased the testator, passing away in 2007.

The testator and Ethel had two daughters, Sheila and Kristin. Sheila also predeceased the testator in 2013. She had never married and had no children. After the testator and Ethel separated, Kristin became estranged from the testator. The decision notes that Kristin described the testator as emotionally and verbally abusive.

Kristin was the only surviving family member of the testator.

The testator left a Will executed in 2005. The court was of the view that, based on its format and content, the Will did not appear to have been prepared by a lawyer.

The Will provided that Sheila was to be appointed as estate trustee, and inherit the residue of the testator’s estate, provided that she survived the testator by 30 days. If Sheila did not survive the testator for 30 days, the Will provided that Ethel was to be appointed as estate trustee, and inherit the residue. Again, however, this was conditional on Ethel surviving the testator by 30 days. As mentioned above, both Sheila and Ethel predeceased the testator.

The Will was witnessed by Sheila and another witness.

Lastly, the Will also specifically stated that “under no circumstances is any part of [the testator’s] estate to be transferred to [his] estranged daughter, Kristin P. Vaudrey, or to any of her descendants.”

Unfortunately for the testator, he had not set out in his Will how the residue of his estate was to be distributed in the event that both Sheila and Ethel predeceased him, as they did. The court found that the residue of the estate was to be distributed pursuant to the intestacy rules set out in s. 47 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). On this basis, Kristin was determined to be the sole heir-at-law of the residue. Accordingly, despite the testator’s wish that Kristin not inherit any part of his estate, his failure to include a gift-over clause with respect to the residue resulted in her inheriting the entire residue.

It is also interesting that Sheila was a witness to the Will. Pursuant to s. 12 of the SLRA, where a beneficiary witnesses the execution of a Will, the bequest to that beneficiary will be void. Even if Sheila had survived the testator, the gift of the residue to her would have been void in any event.

Thanks for reading,

Rebecca Rauws

 

You may also enjoy these other blog posts:

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