A recent news article refers to the struggle of father of accused killer Bryer Schmegelsky to obtain video footage from the Royal Canadian Mounted Police.

The father’s lawyer has referred to the video as the accused’s “last will and testament.”  It was apparently recorded very shortly before death and expresses funeral and burial preferences.

Oral wills (also known as nuncupative wills) are recognized in select jurisdictions, including some American states:

• New York law provides that an oral will, heard by at least two witnesses and made by a member of the active military or a mariner while at sea can be valid and will expire one year after discharge from the armed forces or three years after a sailor, if the testator survives the situation of peril;
• In North Carolina, an oral will made while the testator’s death is imminent and in circumstances where the testator does not survive in the presence of two or more witnesses may be valid;
• In Texas, oral wills made in the presence of three or more witnesses on the testator’s deathbed before September 2007 are valid in respect of personal property of limited value.

As most state legislation is silent on the issue of videotaped wills, if the testator’s oral wishes are videotaped, they must generally meet the criteria for a valid oral will to be effective.

However, in Canada, a will must be in writing, signed by the testator, and witnessed by two people.  Alternatively, a will that is entirely in the testator’s handwriting and unwitnessed may be valid.  Because Ontario is a strict compliance jurisdiction, any inconsistency with the formal requirements, as set out in the Succession Law Reform Act, renders a will invalid.

While a videotaped statement intended to be viewed posthumously may not be a valid will in Ontario and other Canadian provinces, it can nevertheless be used to express the deceased’s final wishes, for example with respect to the disposition of his or her remains (which are typically precatory rather than enforceable, even if appearing within a written document), and may assist a family in finding closure following an unexpected loss.

Thank you for reading.

Nick Esterbauer

Our firm attended the OBA Professional Development Dinner With Your Honourable Estates List Judges on April 5, 2017.  The topic of the new practice advisory on video conferencing, and its intended use, was one of the topics that were discussed that evening.

This particular practice advisory is applicable only to 9:30 scheduling appointments on the Toronto Estates List and it was made in accordance with Rule 1.08 of the Rules of Civil Procedure.  The new practice advisory is clear that, unless otherwise directed by the court, video conferencing is available in consent matters, unopposed matters, and scheduling matters.  Parties or counsel who chose to appear by video conference must make their own arrangements and they may use CourtCall without prior Court approval.  An appearance by CourtCall should be communicated to the Court in either the request or confirmation form filed for the appearance.  As a matter of convenience, the Order, once issue and entered, will be sent to you by CourtCall.
For those who are interested, further details with respect to what CourtCall is and how it works are available on their website, https://courtcall.com.
Any other arrangements with alternative technologies for this purpose will require prior Court approval.

According to the Honourable Estates List Judges who were present during the Dinner, regardless of whether a matter is on consent or unopposed, video conference may still be less than ideal in situations where substantive relief is sought, such as an unopposed guardianship application.

For future OBA Trusts and Estates Law events like the Dinner, please check out the section group here.

Thanks for reading,

Doreen So

Or, listen to the audio version of Will Challenge Litigation – Part 5

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They continue to discuss the process of will challenges in closer detail. What makes a good case? They talk about the five different grounds upon which a will can be challenged:

1. Lack of testamentary capacity
2. Existence of suspicious circumstances
3. Will not having been properly executed
4. Existence of undue influence
5. Possibility of fraud

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They continue to discuss the value of the discovery process and intense investigation. The goal is to get to the mediation process as soon as possible. New evidence may lead to the next stage: the pre-trial. Ian and Suzana talk about the pre-trial process and what you can expect during this stage.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

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Listen to Strategies to Prevent Estate Litigation

This week on Hull on Estates, Natalia Angelini and Rick Bickhram discuss tools and strategies to prevent estate litigation.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

Listen to Administration of the Assets of the Estate

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss things to consider when administrating the assets of an estate and point out burdens of being and executor.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985 or leave us a comment on the Hull on Estates and Succession Planning blog.

Listen to Asset Particulars

This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the importance of keeping track of asset details.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.