As I am sipping on my coffee this morning, I am thinking to myself, who can commence a will challenge?
A will challenge can be commenced pursuant to 75.06(1) of the Rules of Civil Procedure. Rule 75.06(1) is a procedural remedy that permits any person who appears to have a financial interest in an estate to apply for directions or move for directions in another proceeding. This begs the question, who is considered to have a financial interest in an estate? This issue was addressed in the Ontario Superior Court (Divisional Court) decision of Smith v. Vance.
In Smith, the Deceased died on October 27, 1995, leaving a will dated January 5, 1994 which named the applicants as the estate trustees. A notice of objection was filed by three individuals who were cousins of the deceased through marriage. The objection was subsequently struck by the Honourable Justice Perras during the motion for directions on the grounds that the objectors did not have a financial interest in the subject-Estate. In this hearing, the objectors appealed this decision.
The objectors asserted their financial interest in the Estate based on their close relationship with and their physical and financial assistance for the deceased. There was also an earlier destroyed will in which the objectors were named beneficiaries. Finally a letter was allegedly written by the deceased wherein she acknowledged that the objector will have an interest in her estate.
The court acknowledged that a financial interest is not defined in the Rules of Civil Procedure. In such cases, words should be taken by its natural meaning. Black’s legal dictionary defines financial interest as an interest equated with money or its equivalent. The court held that claimants must do more than simply assert an interest. They must present sufficient evidence of a genuine interest and meet a threshold test to justify inclusion as a party. The interest need not be conclusive evidence at that stage but must be evidence capable of supporting an inference that the claim is one that should be heard.
If the evidence offered by an objector is capable of supporting an inference that the claim raises a genuine issue, and thus is one that should be heard, the objector is entitled to standing and should be granted permission to be added as a party. The appeal was allowed and the order by the Honourable Justice Perras was set aside.
I hope you had fun reading today’s blog. Until tomorrow,
There is the view by some that issues surrounding the interpretations of Wills can be mind-numbing. From time to time I tend to enjoy dusting off my book of consolidated estate statutes and reviewing some of the basic tenets of estate law, which makes our area of practice so dynamic.
The issue of a failed gift is a common subject in the context of will interpretations. The Ontario Legislature has considered failed gifts in sections 23 and 31 of the Succession Law Reform Act.
In essence, Section 23 states that unless a contrary intention appears in the subject-will, when a devisee or legatee predeceases the testator, the failed gift falls into the residue of the testator’s estate.
Section 31 is commonly referred to as the "anti-lapse provision." Section 31 prevents devises or bequests from failing by virtue of the devisee or legatee predeceasing the testator. In such a scenario, a gift is saved if the devise or bequest was left for a child, grand-child, brother or sister of the testator and the pre-deceased devisee or legatee died leaving a spouse or issue who survived the testator. If these conditions have been met, the devise or bequest will not fall into the residue, however it will take effect as if it had been made directly to the spouse or issue of predeceased devisee or legatee.
Thank you for reading,
Listen to The Investment Accounts.
This week on Hull on Estates and Succession Planning, Ian and Suzana conduct a quick lesson on capital encroachment and discuss the role of investment accounts in the passing of accounts.
Listen to Compensation for work done by estate trustees and solicitors.
This week on Hull on Estates, Paul Trudelle and Diane Vieira discuss compensation for work done by estate trustees and estate solicitors.
Rooney Estate v. Stewart Estate 2007 WL3019262 (Ont. S.C.J.), 2007 CarswellOnt 650
Who can forget the sad case of Terry Schiavo, the poor lady who suffered catastrophic brain damage in 1990 and was kept alive in a vegetative state on a feeding tube for 15 years? Readers will remember the anguish involved when her husband was forced to litigate against her parents in order to get the tube removed so Terry could die in peace. This became a powerful argument in favour of a "Living Will", which is basically a document in which individuals outline their "personal choices" regarding end-of-life treatments. Living Wills became a feel-good legal product, a perceived solution to the heart-rending situations like Terry’s.
Too bad the research shows that Living Wills may not live up to the hype. According to a recent study by two University of California Irvine researchers, Professors Peter Ditto and Elizabeth Loftus, Living Wills appear to have serious defects. One problem is that patient preferences change over time. For instance, one tends to be more inclined against end-of-life treatments immediately after a hospital stay, but this changes with time. Also, positive treatment results of family members make a patient more inclined to end-of-life treatment. Many people who make Living Wills change their preferences but forget about their Living Will, or misidentify those preferences in the Living Will.
Perhaps the most glaring weakness is that Living Wills do not appear to provide guidance to surrogates who have read them. According to the study, the accuracy of a surrogate who has read a Living Will in prediciting a loved one’s treatment preferences is no higher than that of a surrogate who has not read the Living Will. So a Living Will can be totally inconsistent with the patient’s most recent intentions.
Having a Living Will apparently makes both the patients and the surrogates feel better, so it’s not all bad news.
Have a safe day,
Dame Anita Roddick, the founder of the Body Shop, gave away her entire wealth, approximately 102 million dollars, to various charities while alive. She only left enough money in her estate to pay the inheritance tax on those charitable gifts. Once the inheritance tax is paid, the value of her estate will be nil.
Roddick had been very vocal about her intentions to give her wealth to charities and called the idea of bequeathing her estate to her two daughters obscene. Prior to their mother’s death, her two daughters were interviewed and reportedly relieved to not be inheriting their mother’s wealth and supportive of their mother’s charitable giving.
Needless to say, Roddick’s decision to leave nothing to her two daughters sparked some discussion. David Smith’s previous blog on wealthy parents and transfer of wealth discusses some of the concerns such individuals have about estate planning.
Thanks for reading,
Following up on Allan Socken’s blog of March 31, 2008 entitled “What is Legacy Coaching”, I came across an article in the American College of Trust and Estate Counsel Journal entitled “Is Your (Ethical) Will in Order?” (2008) 33 ACTEC Journal 154 by Zoe Hicks. In her article, the author reviews what an Ethical Will is, what types of topics are normally covered, the format of the Ethical Will, and how estate planning practitioners have embraced the concept of advising clients with respect to leaving an Ethical Will.
Essentially, an Ethical Will is a testament of what you want your survivors to know, rather than what material assets you want them to have. Ethical Wills can include expressions of wisdom, values and beliefs of the “testator”, reminders of heritage, apologies, explanations of actions taken or not taken, regrets, expressions of love and gratitude, and words of encouragement.
Ms. Hicks sets out numerous extracts from Ethical Wills so that the reader can get a flavour of the types of matters that an Ethical Will can to address. She concludes by observing that an Ethical Will can be a valuable exercise for both the writer and the recipient.
Have a great weekend.
Listen to Payment of Legacies
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss payment of legacies and other gifts that may be set out in a will.
Listen to Madore-Ogilvie vs. Ogilvie Estate.
This week on Hull on Estates, Rick and Sean discuss the case of Madore-Ogilvie vs. Ogilvie Estate which was recently featured in the CCH periodical Will Power.
Listen to the deemed undertaking rule.
This week on Hull on Estates, Paul and Allan discuss the deemed undertaking rule and its application to estate matters.