Listen to Executor Obligations
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss what to anticipate as an executor and how to ensure that you are well prepared for your duties.
Yesterday, I set out a fact situation giving rise to a certain interpretation issue.
The fact situation is based on the decision of Moore J. in Rudling Estate v. Rudling, 2007 CanLII 51794 (Ont. S.C.).
There, the court held that the word "debt" in relation to Property B could not include within its meaning all of the taxes, expenses and other charges that the estate trustee is directed by the will to satisfy in addition to "debts" of the estate. The court found that all reasonable charges against the estate arising from the death of the deceased were, by the terms of the will, intended to be paid from the estate before the specific bequests of the two properties are made. That is, both A and B are to share the burden of the testamentary expenses.
The court found that the will could be fairly construed upon the language contained within its four corners, and without the need to resort to extrinsic evidence in order to interpret the meaning.
However, in light of the Orders Giving Directions made in the case, and the issues is raised in the pleadings, and “because I am aware of the recent tendency of Canadian courts to apply the ‘armchair rule’”, the court also addressed the interpretation of the will in light of the surrounding circumstances. The court examined the surrounding circumstances, hearing from ten witnesses over the course of seven days. After considering this evidence, the court concluded that the evidence did not support a conclusion that the testamentary expenses be borne by A alone.
Did you make the right call?
We often see wills where the testator has taken it upon him or herself to make various changes to an executed will by making handwritten changes on its face. What is the effect of these alterations?
A starting point is s. 18 of the Succession Law Reform Act (“SLRA”). This section provides that an alteration is not effective unless it made in accordance with the provisions of the SLRA regarding due execution, or unless the alteration makes a word or words “no longer apparent”.
If the will is a formal will, holograph alterations are not permitted (although a holograph codicil is permitted).
These principles were applied in the case of Luty v. Magill. There, it was found that handwritten alterations to a will that were undated and that did not totally obscure the original bequest were invalid, but that other alterations that were initialled (initials can constitute a signature for the purposes of the SLRA) and dated were considered holograph codicils, and were therefore valid.
With respect to obliteration, if the original words cannot be read, by holding the will up to the light or by using a magnifying glass, (but without the assistance of any other mechanical aids) then the words will be considered to be revoked, regardless of when they were obliterated.
Altered wills will usually require an application for the opinion, advice and direction of the court. Testators should be cautioned as to the requirements for validly altering a will so that the costs of such a court application can be avoided.
Thanks for reading,
In this week’s episode of Hull on Estates, David Smith and Diane A. Vieira discuss the issues surrounding spousal exclusion from the will of the deceased and how to challenge this exclusion.
Click "Continue Reading" to read the transcribed version of this podcast.
While researching yesterday’s blog on the Brooke Astor estate, I stumbled upon a number of legal blogs on the Astor guardianship dispute. Several of these including this one noted that the lawyer for Astor had come under scrutiny during the guardianship dispute. The issue was whether the lawyer himself played a role in unduly influencing Astor to make a Will thereby benefitting her son’s charitable foundation. Such enquiry is, of course, of grave concern and considerably different than that faced by a lawyer who makes a Will in circumstances where there is some question as to whether the testator is capable to make a Will. Certainly, in Ontario, this latter issue has been exhaustively considered by the Court of Appeal in Bennett v. Hall. Put simply, if a lawyer is asked to make a Will (and has been retained for that purpose) but has questions as to the capacity of the testator, it is not inappropriate to make the Will and extensively document his file with notes so that the validity of the Will, if challenged, can be adjudicated by the Court. But what if the lawyer draws a Will under which he or she receives a benefit? A New York Probate lawyer, Philip M. Bernstein notes in his blog that Astor’s lawyer had "been named as beneficiary on several occasions and has inherited such valuable goodies as Manhatten apartments and valuable works of art including at least one Renoir and a Diego Rivera drawing as well as substantial sums of cash." While this example is clearly at the extreme end of the spectrum, trusts and estates practitioners may occasionally encounter clients who wish to name them as a beneficiary of their estate. To accept a retainer in such circumstances is to invite allegations of suspicious circumstances and a presumption of undue influence which could cause the entire Will to be set aside. Surely counsel of caution is to decline a retainer anytime a client wishes to confer a benefit in a Will upon the drafting solicitor, regardless of the circumstances.
Enjoy the weekend,
Every so often, a case comes before the Court which seems to clearly captivate the presiding judge, has historical resonance, and just makes for interesting reading. Re Connolly Estate (2007) 31 E.T.R. (3d) 81, a decision of the Prince Edward Island Trial Division, is such a case. Here, Justice D.H. Jenkins considered the interpretation of the Will of the late Owen Connolly who died on December 27, 1877 (yes, you read that correctly). At issue were the terms of a Trust created by the last of four Codicils to the deceased’s Last Will. The Trust was created "for the purpose of educating…poor children resident in Prince Edward Island who are members of the Roman Catholic Church and who are Irish or the sons of Irish fathers." (The Court pointed out that the Trust was created prior to the coming into force of human rights legislation in P.E.I. which, it implies, may otherwise have had an impact on the terms of the Trust). In each successive year, the Trustees would create as many bursaries as the income generated by the capital of the trust would allow, such that the Trust was now paying out approximately 120 bursaries of $500 each. The Trustees sought the assistance of the Court having regard to the fact that "a blending of bloodlines has occurred, so that Prince Edward Island society has become somewhat a melting pot." In interpreting the terms of the Trust, the Court applied the usual rules of interpretation including consideration of the surrounding circumstances of the deceased. Evidence in this regard consisted of a short biography of the deceased published shortly after his death and an article published in the Charlottetown newspaper reporting on his death (he was clearly a prominent figure at the time). As such, the decision reads like a history lesson of the emigration of Irish to "the colonies." The Court concluded that the Trustees were appropriately exercising their discretion by paying out bursaries to a beneficiary or a beneficiary’s father who had " a significant component (50%+) of Irish ancestry." Because such a class of children continued to exist in Prince Edward Island (albeit "melting away"), there was no risk of the gift failing. The Court therefore had no need to invoke the cy pres doctrine to preserve the general charitable intent of the testator. Yet another example of the unique nature of estates and trusts law!