Tag: wills

07 Jul

Hull on Estates #593 – Dependant Adult Child: Issues on an Intestacy

76admin Estate Litigation, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, Wills Tags: , , , , 0 Comments

This week on Hull on Estates, Stuart Clark and Kira Domratchev discuss a finding of support for an adult dependant child in Deleon v Estate of Raymon DeRanney, 2020 ONSC 19.

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 Stuart Clark.

Click here for more information on Kira Domratchev.

18 Jun

Disclaiming an Inheritance for Another’s Benefit

Arielle Di Iulio Estate & Trust, General Interest, In the News, Wills Tags: , , , , , 0 Comments

The last will and testament of the gunman responsible for Nova Scotia’s mass shooting in April 2020 was recently made public. The gunman’s will names his common law spouse as the executor of his estate, estimated to be worth around $1.2 million. However, the gunman’s spouse has renounced her right to be executor of his estate and it is now being administered by the Public Trustee. It was also rumoured that the spouse had renounced any interest she may have had in the gunman’s sizable estate.

Whether the gunman’s partner did in fact relinquish any inheritance remains to be confirmed. However, there are a multitude of reasons why someone may choose to waive their right to an inheritance, including:

  • Emotional grounds;
  • Personal moral or ethical grounds;
  • To avoid taking possession of an undesirable or costly asset, such as real property that requires significant repairs or maintenance;
  • To avoid subjecting assets to potential creditors if the beneficiary is on the brink of bankruptcy or involved in a lawsuit; or
  • To allow the asset to pass to a secondary beneficiary.

For an overview of what is required to properly disclaim an inheritance, you can read Ian Hull’s blog here.

As shown by the above list, even where a beneficiary does not plan to benefit personally from an inheritance they may still be interested in what happens to that inheritance. In such situations, the beneficiary may want to think carefully about whether disclaiming their inheritance is the best option.

It is important to note that a person can only disclaim a gift if they have not yet benefited from the assets and, once disclaimed, that person has no control over the assets. In other words, a beneficiary who renounces a gift should not have anything to do with those assets either before or after they have been disclaimed. This also means that the beneficiary should not have any say in who receives the inheritance.

If a person wants to disclaim their inheritance in order for it to pass to a secondary beneficiary, they should confirm whether the deceased’s will or intestacy laws, as applicable, provide for that outcome. If it does not, or if the person wishes to direct their inheritance to some other individual or charity, there is another option: they can accept the inheritance and give some or all of the assets to whomever they choose. Depending on the beneficiary’s particular goals and circumstances, accepting an inheritance and distributing the assets as they see fit may be preferable to disclaiming the assets.

Thanks for reading!

Arielle Di Iulio

17 Jun

Will Conditions Against Drinking, Smoking, and Gambling

Suzana Popovic-Montag Estate Planning, Wills Tags: , , , , 0 Comments

As the 21st century progresses, societies across the world have moved towards legalization and decriminalization of drugs and, in general, a narrower definition of what constitutes a “vice”. At the same time, there have been increasing efforts, both legally and culturally, to safeguard people from falling into dependence. The Canadian Radio-television and Telecommunications Commission prohibits alcohol advertising that depicts the consumption of alcohol. In contrast to decades wherein Santa Claus and doctors were advertised smoking, cigarette packaging is decidedly less festive – indeed, its gore is more characteristic of a horror film than a consumer product. So wary have some of us become that there have been studies published in Australia and Britain that have analyzed James Bond’s drinking habits and stated that he would be “at high risk of multiple alcohol-related diseases and an early death” (as though Bond blanches at risk!).

In previous centuries, there was far less legal regulation (except under Prohibition, a marked exception) of the aforementioned indulgences, but there was no less apprehension with respect to their widespread usage. In the 1887 case of Jordan v. Dunn, [1887] W.L. 9876 (Ont. Q.B.), a testator devised his lands to his son on the condition, in part, that he abstain from intoxicants and card-playing. The Court decided that the gift did not vest until the beneficiary adhered to the testator’s rules:

“If a devise be only on the performance of some particular duty or upon some particular event; that is, if it be a condition precedent, there is no gift unless the condition is fulfilled; and it makes no difference that the event is impossible, impolitic or illegal.”

In Quay, Re, [1907] CarswellOnt 706, a testator’s gift to his son came with the condition that he was not “engaged in malt or spirituous liquor traffic or in any form of gambling or games of chance”. The son, perhaps a little piqued at the testator’s implication, sought a determination of the condition’s validity. The Court upheld the condition, not construing it as an in terrorem clause but as a “competent direction in furtherance of public interests”. A distinction was also drawn between “playing games by way of diversion or amusement” and gambling as a daily occupation.

The testatrix in Kennedy Estate, Re, [1949] CarswellMan 72, was yet more prohibitive, giving her daughter farmland rental proceeds only as long as her daughter did not “smoke or drink intoxicating liquor”. The Court approved of this provision:

“Conditions that a person must not drink intoxicating liquor, or play cards, or must ‘continue steady’ are valid conditions and although there is no specific authority I hold that a condition against smoking comes within the same category and is a valid condition.”

Ostensibly, these “continue steady” conditions are still legally valid, but we cannot say with great certainty, for it seems that these days testators are less inclined to make such conditions for their testamentary gifts. This is unfortunate for students of the law eager for test cases, although it is fortunate for fun loving beneficiaries, whose smiles might otherwise dampen from the constant accompaniment of a sober-faced condition precedent.

Thank you for reading … Have a great day,

Suzana Popovic-Montag & Devin McMurtry.

11 Jun

The Tale of Carole Baskin and the Forged Will

Christina Canestraro Forged Wills Tags: , , 0 Comments

If you’ve been keeping up with pop-culture and the array of new Netflix shows recently released, then the name “Tiger King” should ring a bell. The outlandish and quirky Netflix mini-series documents eccentric Oklahoman former big-cat zookeeper, Joe Exotic, and his bitter rivalry with his arch-nemesis, Carole Baskin, owner of the Big Cat Rescue sanctuary in Florida. The series concludes with Joe Exotic receiving a 22-year prison sentence for attempting to murder Baskin. Surprisingly, that is not the narrative that caught people’s attention. Rather, viewers took to social media platforms with memes, tweets, and TikTok’s of fans wondering, “Did Carole Baskin kill her husband?”.

Throughout the series, Joe Exotic alleges that Baskin murdered her first husband, Don Lewis, and fed him to the tigers housed in their shared tiger sanctuary (yes, you read that correctly). The mini-series certainly raised suspicions regarding Lewis’ disappearance. Lewis was a millionaire, who disappeared some months after having filed a restraining order against his wife. Baskin ultimately inherited all of Lewis’ assets to the exclusion of his former wife and their two children. Due to the show’s popularity, and the public’s demand for answers, the case of Lewis’ disappearance was reopened by the Hillsborough County Police.

The latest development in the investigation of Lewis’ disappearance came from the Sheriff of the Hillsborough County Police, who advised that experts have determined that Lewis’ last will, under which Baskin was the sole beneficiary, was forged. Apparently, the forgery had been alleged when this case was first brought before Florida courts, although the judge preferred the evidence of Baskin’s expert who found that the signature was not forged. This blog is not intended to explore the veracity of these allegations. However, this news did spark my curiosity with respect to forged wills and their treatment in Ontario courts.

In Ontario, a will can be forged by tracing or forging a person’s signature on a will, removing pages from a will or substituting pages to change the will’s contents, or making amendments to a will after it has been signed without the knowledge or consent of the testator.

If an objector to a will alleges forgery, courts will rely on the evidence of expert examiners. Such was the case in Bayford v Boese, 2019 ONSC 5663, wherein the court relied on the expert evidence of a document examiner who had previously worked in state crime laboratories in the USA and for the FBI. The expert examined and compared several other documents that were known to be signed by the testator to determine whether they had been forged, and ultimately concluded that they had not.

If a will is found to be a product of forgery then it would be declared invalid and the court would seek to rely on the most recent prior will. There could also be criminal consequences that flow from a finding of forgery, pursuant to section 380(1)(a) of the Criminal Code.

It will be interesting to see if anything comes of this new allegation of forgery.

Thank you for reading!

Christina Canestraro

A special thanks to Sean Hess for his contributions to this post.

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

 

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09 Apr

Witnessing Wills by Video- Affidavits of Execution

Ian Hull Estate Planning Tags: , , , , , , 0 Comments

As of April 7, Wills can be witnessed by video conference.

This will likely require a different affidavit of execution. The typical affidavit of execution is a Court Form – Form 74.8- may not be sufficient if the Will is witnessed by video conference.

Likely, two separate affidavits of execution will be necessary.

In light of these changes, we have created a set of sample Affidavits of Execution for your consideration. Of course, we do not know what the Courts will ultimately require as evidence of execution, so for now it’s just a best guess.

Click here to access sample Affidavits of Execution and further information about Affidavits of Execution for video witnessing.

Feel free to reach out with any questions,

Ian Hull

07 Apr

Witnessing Wills and POAs by Video- Ontario Enacts Emergency Measures

Ian Hull Estate Planning, In the News, Wills Tags: , , , , , , , 0 Comments

As of April 7, Wills can be witnessed by video conference.

As you are aware, two witnesses must be “in the presence of” the testator when a typed Will is signed. This has historically required physical presence.

The new Emergency Order now confirms that the “presence” may be by “audio-visual communication technology”.

Importantly, at least 1 of the 2 witnesses must be a licensee of the Law Society of Ontario.

In light of these changes, we, together with Hull e-State Planner, have created a suggested Video Execution Checklist to use for execution of wills in these circumstances.

Click here to access the Checklist and further information about the Emergency Order.

Feel free to reach out with any questions,

Ian Hull

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:

03 Mar

Hull on Estates #590 – Substantial Compliance vs. Strict Compliance

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Wills Tags: , , , 0 Comments

In today’s podcast, Paul Trudelle and Kira Domratchev discuss the British Columbia Supreme Court’s decision in Hubschi Estate (Re), 2019 BCSC 2040, and the factors considered by the Court in holding that the document found on the deceased’s computer was a Will in accordance with the curative provisions of the relevant legislation.

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 Paul Trudelle.

Click here for more information on Kira Domratchev.

25 Feb

Hull on Estates #589 – “Cottage Planning”?

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Show Notes, Uncategorized, Wills Tags: , , , , , , , , , 0 Comments

In today’s podcast, Stuart Clark and Doreen So discuss the Ontario Court of Appeal’s decision in Donaldson v. Braybrook, 2020 ONCA 66, and what to consider when the ownership of a family cottage was changed to include the children.

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 Stuart Clark.

Click here for more information on Doreen So.

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