Tag: will

15 Dec

Hull on Estates #445 – Drafting and Challenging No-Contest Clauses in Wills

Hull & Hull LLP Hull on Estate and Succession Planning, Litigation, Podcasts, Show Notes, Uncategorized Tags: , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Lisa Haseley discuss drafting and litigating no-contest clauses in Wills.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

10 Dec

Hull on Estates #444 — Proving a Will in Common Form vs Solemn Form

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This week on Hull on Estate Jonathon Kappy and Lisa Haseley discuss the differences and implications of proving a will in common form and solemn form.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Jonathon Kappy.

16 Nov

Meaning of “Use” and Accumulation of Wealth

Ian Hull Litigation, Wills Tags: , , , , , , , , , , 0 Comments

In a recent Ontario Court of Appeal decision, Holgate v Sheehan Estate, 2015 ONCA 717, the court was asked to consider an appeal from a motion for determination of an issue under Rule 21.01(1)(a) of the Rules of Civil Procedure. The Rule 21 motion arose in the context of a trial with respect to the interpretation of the will and codicil of John Holgate, and particularly the meaning of the word “use”. The appeal also dealt with the trial judge’s jurisdiction to hear the mid-trial Rule 21 motion, but this blog will deal with the former issue.

Mr. Holgate had passed away and was survived by two sons from his first marriage (the “sons”) and his second wife, (“Mrs. Holgate”). Mr. Holgate’s will and codicil provided for a life interest in two trusts to Mrs. Holgate. Following Mrs. Holgate’s death, Mr. Holgate’s children were entitled to the remainder of the two trusts. The wording of the two trusts provided that the trust assets were to be held for “the sole use and benefit of my wife MAY HOLGATE during her lifetime”.

The sons brought an action against their father’s estate, Mrs. Holgate’s estate and Mrs. Holgate’s daughter personally, claiming that Mrs. Holgate’s life interest allowed her to use the money but not save it. They alleged that Mrs. Holgate had not only used trust assets, but had also saved money, thereby depleting the capital of the estate to their detriment and contrary to their father’s intention.

Three days into the trial, the trial judge invited counsel to bring a mid-trial motion either for determination of an issue or for directions in order to determine this critical issue with respect to the interpretation of the will and codicil, namely the meaning of the term “use”. Counsel agreed to bring a Rule 21 motion and asked whether the wording of the will and codicil precluded Mrs. Holgate from accumulating wealth from the trusts in her own name.

The trial judge concluded that:

  • nothing in the will or codicil prevented Mrs. Holgate from saving and accumulating wealth;
  • the language of the will came as close as possible to conferring an absolute gift on Mrs. Holgate; and
  • neither of the trusts included any limitations on the use of the assets by Mrs. Holgate.

On appeal by the sons, the Court of Appeal agreed with the trial judge’s interpretation, that the words and phrases used in the trusts indicate a clear intention on Mr. Holgate’s part to allow his wife unrestricted access to the funds. They also cited Dice v Dice Estate, 2012 ONCA 469, which held that “[t]he golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used”.

Thanks for reading.

Ian Hull

08 May

The Legend of Ted Williams

Hull & Hull LLP Estate Planning, Funerals, In the News, Wills Tags: , , , , , , , , 0 Comments

A co-worker recently passed along this ESPN article chronicling the storied life of Ted Williams, arguably one of the greatest baseball players to have ever played the game.  While I must admit that my love for sports stems from hockey and the beautiful game of soccer, as Estates lawyers, my co-worker and I were drawn to the issues surrounding the Last Will of Ted Williams and his burial wishes.

According to this Daily Mail article, Williams executed a Last Will and Testament in 1996 apparently indicating that he wanted to have his body cremated and his ashes sprinkled around his Florida Keys fishing grounds “…where the water is very deep”.

Notwithstanding the contents of Williams’ Last Will, it appears that some of his children approved the decision to have Williams cryogenically frozen.  It seems that the motivation in part was a result of the vast amount of literature read by Williams’ son including The Prospect of Immortality which promotes that the “freezer always trumped the grave”.  In addition, after his passing, his children produced a note signed by Williams and dated November 2, 2000 that his children “…and Dad all agree to be put into bio-statis after we die.  This is what we want, to be able to be together in the future, even if it is only a chance”.  Nonetheless, it remains unclear as to what Williams actually wanted.

Upon the passing of Williams, his body was flown to a cryogenics facility where Williams head ($50,000) and body ($120,000) were separately frozen and stored.

As a result of these actions, one of Williams children commenced a petition seeking the return of her father’s body to comply with the wishes set out in the Last Will.  This claim was later withdrawn and to this day, Williams body remains frozen.

At this point, any Ontario Estates lawyer is probably reminding themselves that in Ontario, burial instructions in a Last Will are merely wishes and not binding.  As a refresher, see this Hull & Hull blog with respect to the burial decisions surrounding Nelson Mandela.

Also of interest, it appears that Williams created an insurance trust for the benefit of his children only to be paid on the 10th anniversary of his death.  This trust has now been dissolved.

Noah Weisberg

26 Nov

Hull on Estates #358 – Due execution of a will

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Listen to Hull on Estates #357 – Due execution of a will

 

Today on Hull on Estates, David Smith and Josh Eisen discuss the strict approach to due execution of a will in Ontario, and the more permissive alternative approach followed in some other provinces.

If you have any questions, please email us at hullandhull.lawyers@gmail.com or leave us a comment on our blog page.

 

Click here for more information on David Smith.

Click here for more information on Josh Eisen.

21 Nov

Hull on Estates Episode #311 – Beneficiary Designations When a Will Is Revoked

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 Listen to: Hull on Estates Episode #311 – Beneficiary Designations When a Will Is Revoked 

 

This week on Hull on Estates, Paul Trudelle and Holly LeValliant discuss beneficiary designations when a will is revoked. More specifically, they discuss a recent decision made by the Ontario Superior Court of Justice: Petch v. Kuivila, 2012 ONSC 6131 (CanLII).

If you have any questions, please email us at hull.lawyers@gmail.com or leave a comment on our blog.

Click here for more information on Paul Trudelle.

Click here for more information on Holly LeValliant

 

15 Nov

Show Me the “Money”

Hull & Hull LLP Estate & Trust, Litigation Tags: , , , , , , , 0 Comments

In Thiemer Estate, a decision of the B.C. Supreme Court, 2012 BCSC 629 (CanLII), the deceased left an estate having a value of $20m. He left a will that provided for various specific legacies. The will also included a clause that directed the payment of “the balance of any money which I may have at the time of my death” to a common-law spouse. The will went on to define “money” as including “the balance of any money which I may have in any savings and current accounts in my name, any savings certificates, shares and bonds but excluding” insurance proceeds and RRSPs.

At the time of his death, the deceased had bank accounts, GICs, a mortgage receivable, and most relevant to the proceeding, shares in private companies having a value of $14m.

At issue in the interpretation application was whether the definition of “money” in the will, which referred to “shares”, meant that the value of the private companies was to be paid to the common-law spouse.

The decision sets out the relevant guiding principles, and case law on the definition of “money”.

The court decided that the reference to “shares” in the definition of “money” was not intended to include the shares in the private corporations. Essentially, the items included in the meaning of “money” were items that were in the form of cash, or which could be readily converted into cash. This might, then, include shares in publicly traded corporations. It was held, however, that the definition did not extend to shares in a private corporation, which by their very nature could not be readily liquidated.

This conclusion was fortified by other terms of the will. For example, the will established a spousal trust. If the spouse’s position on the definition of “money” was accepted, there would be very little left in the spousal trust. Further, the will provided extensive administrative powers to the trustees with respect to the ongoing operation of the companies. The spouse’s interpretation of “money” would render these powers “superfluous”.

The case is very instructive in the interpretation of wills, generally, and the application of those principles of interpretation in a specific context. 

Thank you for reading,

Paul Trudelle – Click here for more information on Paul Trudelle

18 Jun

The Importance of Having a Will

Hull & Hull LLP Estate & Trust Tags: , 0 Comments

It was Benjamin Franklin who famously stated, "The only thing certain in life are death and taxes".  Beyond these two certainties, surely is another certainty, that is, upon the death of an individual, the remains of their property, however big or small, are to be distributed.  This means that a will plays an integral role upon an individual’s passing.  Whether a client is one of modest or limited means, or whether a client is of extravagant or unlimited means, the importance of having a will cannot be understated.  Much of the reasoning supporting an individual taking the time to execute a will applies to all types of clients, wealthy or not.
 

One justification for having a will is to eliminate family fighting over the disposition of assets.  In other words, a will helps to keep the peace.  So long as a client’s will clearly demarcates how the assets are to be divided, it has the effect of reducing the amount of hostility felt towards family members who each may believe they are deserving of a bigger piece of the pie.  Whilst it is true that a will cannot guarantee that no litigation will arise, if the will ends up being litigated over, a will and corresponding drafting solicitor notes should offer insight into one of the most important questions asked by the court, "what was the intention of the testator".
 

Not only does a will have the potential to save family members from fighting amongst each other as mentioned above, it also allows a testator to appoint guardians, most notably for minors and those who lack capacity, to ensure that they are adequately looked after.  Although there are provisions in the law to ensure that such individuals are cared for, knowing that there is someone trustworthy appointed to make the necessary decisions, may limit concerns as to how the individual is to be treated in the future.
 

A further justification for having a will is that it empowers the testator to decide who is to receive their property.  This is especially important for a testator who may only have a few cherished possessions and assets.  Failing to draft a will results in an intestacy.  This has the effect of letting the law decide under Part II of the Succession Law Reform Act, RSO 1990, c S.26, who is to be in receipt of the intestate’s property.  Following the law of intestacy has the effect of bequests falling rigidly according to the law which may or may not be to the desire of the intestate.
 

Lastly, a carefully drafted will, or wills, have the potential to reduce one’s exposure to estate administration tax.  This has the obvious consequence of a greater percentage of the assets flowing to the beneficiaries.  In the Ontario Supreme Court decision of Granovsky Estate v. Ontario, 1998 CanLII 14913 (ON SC) the testator created two wills, a primary will dealing with assets subject to estate administration tax, and a secondary will dealing with assets falling outside estate administrative tax, such as shares of private companies.  It was held that only the primary will needed to be submitted for probate (now referred to as a certificate of appointment of estate trustee with a will).  Testators have since followed this trend and have created separate wills for assets that require estate administration tax to be paid.
 

Ian Hull – Click here for more information on Ian Hull

16 Mar

Didn’t Get the Memo?

Hull & Hull LLP Estate Planning, Litigation Tags: , , , , , , , , 0 Comments

Wills often deal with personal property by referring to a memorandum that sets out how the personal property is to be distributed. Usually, the memorandum is not executed in accordance with the requirements of the Succession Law Reform Act, or similar legislation. How effective is such a memo?

A memorandum, even if not properly executed, will be “incorporated by reference” and found to part of a valid will if:

a. the memorandum is referred to in a duly executed testamentary instrument;

b. the memorandum is in existence at the time of the execution of the testamentary instrument; and

c. the memorandum is “ascertainable” – that is, there is specific reference to a specific document. The reference to the document must make it identifiable: see Black Estate v. Black, 2006 CarswellOnt 9030, 32 E.T.R. (3d) 282 at para. 19.

Reference in the will to a document that is to be created in the future can be fatal to the application of incorporation by reference. However, reference to a memorandum that does not exist at the time the will was executed, but exists at a time when a codicil confirming the will is executed may result in a valid incorporation by reference: See Re Lady Truro (1866), L.R. 1 P.& D. 201, referred to in Hull, Probate Practice, 4th ed, p. 83.

Thanks for reading,

Paul Trudelle – Click here for more information on Paul Trudelle

01 Nov

The “Why and What” of Leaving an Inheritance

Hull & Hull LLP Estate & Trust Tags: , , , 0 Comments

A British professional advice website, unbiased.co.uk, has published some intriguing statistical data as part of its ‘Write a Will Week’ campaign, which is ongoing this week..

More than one in four (27%) UK adults hope to leave enough money for their family or pets to live comfortably after they’re gone.

The more specific stats are as follows:

  • Enough for family or pets to live comfortably                         27%
  • Enough to boost child/grandchild’s savings                            19%
  • Enough for child/grandchild to put a deposit on a house         15%
  • Enough to fund child/grandchild through university                 11%
  • Enough to fund child/grandchild’s wedding                               7%
     

With respect to the composition of their expected estates, "nearly two thirds of UK adults expect to have a property (63%).  Of those, 55% expect the value of the home they leave to be worth £100k or more.  Over half (51%) expect to leave jewellery, antiques and paintings and nearly one in ten (9%) expect to leave a business behind."

David M. Smith – Click here for more information on David Smith

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