Tag: wills

30 Sep

What can you do if you Suspect that a Loved One is no longer Capable?

Rebecca Rauws Capacity Tags: , , , , , , , , , , 0 Comments

Something that no one ever wants to deal with, but which is sometimes an unfortunate reality, is the incapacity of a loved one. You may notice that your spouse or parent is not themselves, or has acted in a way that causes you some concern.

If the person has a power of attorney for property and a power of attorney for personal care, the attorney(s) named in those powers of attorney may need to step in and begin to manage the person’s finances and care. The terms of the power of attorney may set out when the attorney can begin acting. For instance, some powers of attorney for property are effective immediately upon execution by the grantor, and continue to be in effect in the event of any subsequent incapacity.

The power of attorney may also outline what kind of confirmation of the grantor’s incapacity is necessary before the attorney may begin acting on the grantor’s behalf. If the grantor is willing to cooperate in whatever capacity assessment is required, this step may be simple and straightforward to complete. However, as is often the case, the person may resist acknowledging any decline in their capacity or cognition, and may not wish to have their capacity assessed.

Pursuant to s. 78(1) of the Substitute Decisions Act, 1992 (the “SDA”), a person must consent to having their capacity assessed. If they refuse to be assessed, the assessor is precluded from performing an assessment.

If a person refuses to be assessed, it is possible to seek a court order for an assessment, pursuant to s. 79(1) of the SDA. In order to do so, the following will be required:

a) the person’s capacity must be in issue in a proceeding under the SDA; and

b) the court must be satisfied that there are reasonable grounds to believe that the person is incapable.

As a capacity assessment can be an intrusive process, the court takes requests to order them very seriously, and will often not be quick to order one. As discussed in Abrams v Abrams, [2008] O.J. No. 5207, some of the factors that the court will consider in making a determination in this regard include the following:

i) the purpose of the SDA, being to protect the vulnerable;

ii) the nature and circumstances of the proceedings in which the issue is raised;

iii) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;

iv) whether the assessment will be necessary in order to decide the issue before the court;

v) whether any harm will be done if an assessment does not take place; and

vi) the wishes of the person sought to be examined, taking into account his or her capacity.

Thanks for reading,

Rebecca Rauws

 

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28 Sep

Could Robot Pets Help with Loneliness in Elderly People?

Rebecca Rauws Elder Law Tags: , , , , , , , , , , , , 0 Comments

An issue that we see all too often with older adults, and which was exacerbated throughout the pandemic lockdowns, is that they can be lonely and isolated. With spouses who pass away, and children and grandchildren having their own lives, our elders may end up spending a great deal of time on their own. They may feel that they don’t want to bother their family members by calling, or asking them to visit.

According to this New Yorker article from earlier this year, loneliness and isolation can have a serious impact on an elderly person. Without anyone to call, or anyone to check on them, an older adult could remain on the ground for a long time after a fall, or be living in unsafe or unhygienic conditions. From a medical perspective, loneliness is thought to result in a heightened inflammatory response, which can increase the risk of a number of conditions including dementia, depression, high blood pressure, and stroke. All this to say that loneliness is a serious problem. And it has the potential to impact many people; the article notes that nearly thirty per cent of Americans over 65 years of age live by themselves, and that forty-three per cent of Americans over 60 years of age identify as lonely.

An interesting project that has popped up in recent years involves distributing robot pets to elderly people. A study published in 2020 found that elderly users who interacted with the robotic pets for sixty days reported greater optimism and sense of purpose, and were sometimes less lonely.

Anecdotal comments from some older adults who were given a robot pet indicate that even though they know the pet isn’t real, at times it can feel real. One owner noted that he had put out water for his cat, even though he knew she wouldn’t drink it, but that he likes to “kid around with her” about this. Frequently, owners of the pets like and interact with their pet so much that the batteries run out.

Some critics are concerned that it may be indecent for us to offer robotic company as an alternative to human company. However, the difficulty seems to be that there is a lack of human company.

Although this approach may not be for everyone, that it has had some success with a number of users so far is, in my view, a positive thing. If younger generations can rely on technological innovations to improve our everyday lives, the same should apply to older adults. The robotic pets are not intended to replace human companionship, but if it helps alleviate loneliness, it seems to me to be worth trying.

Thanks for reading,

Rebecca Rauws

 

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27 Sep

The Power of Testamentary Charitable Giving

Rebecca Rauws Charities Tags: , , , , , , , , , , , , , 0 Comments

This month marks the beginning of the Will Power campaign, led by the CAGP Foundation and the Canadian Association of Gift Planners.

Will Power is designed to show Canadians the power they have to make a difference with their Wills by leaving charitable gifts.

Many Canadians feel that if they leave a charitable gift in their Will, it will take away from gifts and support for their loved ones, who they also wish to benefit as part of their estate plan. But according to CAGP and the CAGP Foundation, leaving even 1% of one’s estate to charity can still “have an enormous impact on your cause, while still leaving 99% of your estate to your family…You don’t have to choose between your loved ones and the causes you care about when planning your Will.” The Will Power website has a helpful legacy calculator, which can help with visualizing what it means to leave a gift to charity, and still be in a position to benefit your loved ones.

Some people may think that they need to have a very large estate to be able to make a meaningful gift to charity. But regardless of the size of the gift, it can still make a difference. Will Power estimates that if only 3.5% more ordinary Canadians included a gift in their Will in the coming decade, the result would be $40 billion in gifts to charitable causes.

Another aspect of charitable giving to consider is the tax benefit of doing so. Depending on the nature of your assets at the time of your passing, and any estate planning steps, there could be significant taxes payable on death. Making a testamentary gift to a cause that is important to you could result in a reduction of the amount of taxes to be paid.

For more information, and helpful links, you can check out this press release from Will Power.

Thanks for reading,

Rebecca Rauws

 

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13 Jul

Hull on Estates #617 – Crossing the Threshold for a Will Challenge

76admin Podcasts Tags: , , , , 0 Comments

This week on Hull on Estates, Paul Trudelle and Fred Tonelli discuss the decision and corresponding order in Morrish v Katona ONSC 3805, and review the threshold to challenge a will and compensation due to an examined drafting solicitor and his or her lawyer.

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

Click here for more information on Paul Trudelle

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13 Jul

British Columbia & Wills Variation: Who is Entitled to Dependant’s Support?

Rebecca Rauws Support After Death Tags: , , , , , , , , , , , , , , 0 Comments

In Ontario, the Succession Law Reform Act, R.S.O. 1990, c. S.26 allows a deceased person’s dependants, to whom the deceased has not made adequate provision for his or her proper support, to seek an order for support to be made to the dependant out of the deceased’s estate. In order to qualify as a “dependant”, a person must be a spouse, parent, child, or sibling of the deceased “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” There are therefore several conditions for a person to be able to obtain an order for dependant’s support:

  1. they must have one of the required relationships with the deceased (spouse, parent, child, or sibling);
  2. the deceased must have been providing them with support, or have a legal obligation to provide support, immediately before the deceased’s death; and
  3. any provision made for the person in the deceased’s Will (if any) must be inadequate.

British Columbia deals with dependant’s support differently than Ontario. In B.C.’s Wills, Estates and Succession Act, S.B.C. 2009, c 13, s. 60 provides that if a testator does not make adequate provision for the proper maintenance and support of his or her spouse or children in his or her Will, the court may order the provision that it thinks adequate, just, and equitable in the circumstances for the spouse or children out of the testator’s estate. Unlike the Ontario law, it is not a requirement that the testator had been providing support to his or her spouse or children prior to death. This difference is significant because in Ontario, independent adult children are typically not able to obtain dependant’s relief as they do not meet the requirements of a “dependant”. In BC case law, there is also a greater emphasis on a testator’s moral duty to his or her dependant’s than there is in Ontario.

The BC Supreme Court decision in Jung v Poole Estate, 2021 BCSC 623 provides an example of how the difference in the law in Ontario vs. B.C. can result in vastly different outcomes.  In Jung v Poole, the testator was survived by his two twin daughters, Courtney and Chelsea. Courtney and Chelsea’s mother had been dating the testator when she became pregnant. The testator suggested an abortion but the mother chose to keep the twins, and raised them as a single mother without any involvement or financial assistance from the testator. The mother died when the twins were 4 years old, and a custody battle ensued between the testator and the twins’ grandmother on their mother’s side, on the one hand, and a couple who were friends of the mother’s and whom the mother had named in her Will to be the twins’ joint guardians, on the other hand. The testator expressed a desire to be involved in raising the twins at that time.

Ultimately, the court determined that the couple chosen by the mother to be the twins’ guardians would become the twins’ custodial parents. The testator and the grandmother were allowed specific and generous parenting time, access, and consultations regarding major areas of the twins’ lives. However, the testator never exercised any of these rights and, with the exception of one attempt to contact the twins the year after the custody decision, ceased to have any involvement in their lives.

The testator executed two Wills after the custody decision, both of which disinherited the twins. In one Will the testator referred to the twins as his illegitimate children, and in the other he explained that one of his reasons for disinheriting them was that they had not made efforts to contact him.

As stated by the court, if the court concludes that the testator owed a moral obligation to the twins and did not make adequate provision for their proper maintenance and support, the court has the authority to vary the testator’s Will to make the provision for them that, in its view, is adequate, just and equitable in the circumstances.

The court did ultimately conclude that the testator abandoned the twins from the outset, as well as after the custody battle, and had a strong moral obligation to them, which he failed to meet during his lifetime. As a result, the court varied the testator’s Will to provide 35% to each of Courtney and Chelsea, and 15% to each of the two friends of the testator who had been named as estate trustees and sole beneficiaries of his estate. The court was of the view that the testator had blamed the twins for the decision in the custody battle, even though that was beyond the twins’ control, and also blamed them for the lack of relationship, notwithstanding what the court found were valid and rational reasons given by the twins in this regard (including that they were hurt that the testator had wanted their mother to abort them, and the testator’s actions during their lives made it clear to them that he did not want them in his life).

It is unlikely that the same decision would have been reached had this situation occurred in Ontario. The fact that the twins were independent adults, and that the testator had not been providing them with support, nor under a legal obligation to provide them with support, immediately before his death, would likely have resulted in a decision that the twins were not entitled to support, regardless of the unfortunate circumstances between the twins and the testator.

Thanks for reading,

Rebecca Rauws

 

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28 Jun

Electronic Signatures Still not an Option for Wills in Ontario

Nick Esterbauer Estate Litigation, Estate Planning, Wills Tags: , , , , , , 0 Comments

Our readers will already know about the recent approval of legislation providing for will validation in Ontario under Bill 245, the Accelerating Access to Justice Act, 2021.  The act received Royal Assent in April 2021.  The changes under Schedule 9, which addresses amendments of the Succession Law Reform Act, RSO 1990, c S.26 (the “SLRA”), come into effect on January 1, 2022 (other than the update to virtual will witnessing in counterpart, which has already been made permanent under the revised Section 4 of the SLRA).

As of January 1, 2022, a new Section 21.1 of the SLRA will read as follows:

Court-ordered validity

(1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

No electronic wills

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.

Transition

(3)Subsection (1) applies if the deceased died on or after the day section 5 of Schedule 9 to the Accelerating Access to Justice Act, 2021 came into force.

We have seen Section 21.1 referred to as both a will-validation provision and as a “substantial compliance” provision.  In fact, Section 21.1 does not specify that substantial compliance with the formal requirements for a valid will under the SLRA is required and it may, accordingly be more accurately referred to as a will-validation provision.  Either way, this is a significant change to the law of validity of wills in Ontario and our province, as of January 1, 2022, will no longer be a strict compliance jurisdiction where some documents clearly intended to function as a valid will are rejected and deemed ineffective for technical reasons.

Notably, the legislation carves out the use of electronic signatures.  Some estate practitioners had been hopeful that electronic signatures would be accepted under the proposed estate legislative reform, given the recent increased acceptance of electronic signatures in the swearing/commissioning of affidavits and other legal documents and options available to verify their authenticity.  Section 31 of the Electronic Commerce Act, 2000, SO 2000, c 17, excludes the application of that act to wills, codicils, testamentary trusts, and powers of attorney.

Accordingly, it appears that a will signed by the testator or witnesses using electronic means cannot be validated by the Court, even after the new Section 21.1 is introduced to the SLRA.  For now (including after January 1 of next year), all wills still require actual, “wet” signatures in order to be valid.  Furthermore, even if a will may be validated by the Court under Section 21.1, the uncertainty, delay, and expense relating to applying for court-ordered validation of a will may still be best avoided by seeking an experienced estate planning lawyer’s assistance in the preparation of a Last Will and Testament.

Thank you for reading.

Nick Esterbauer

04 May

Hull on Estates #612 – Independent Adult Children and Varying Wills

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

This week on Hull on Estates Paul Trudelle and Sydney Osmar discuss moral claims for relief under BC’s Wills, Estates and Succession Act.

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 Sydney Osmar

20 Apr

Hull on Estates #611 – Production Orders and Drafting Solicitor’s Files

76admin Hull on Estate and Succession Planning, 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 the recent decision of Grove v Simon Dirk Kenworthy-Groen as executor of the estate of William Grove [2021] WASC 70, pertaining to production of preceding Wills and a drafting solicitor’s records.

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

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12 Apr

Importance of Strict Compliance with Formal Will Execution Requirements

Nick Esterbauer Estate Planning, Wills Tags: , , , , 0 Comments

As many of our readers know, Ontario may be well on its way to becoming a jurisdiction in which wills may be validated notwithstanding that they are not strictly compliant with the formal requirements set out under the Succession Law Reform Act. However a recent decision of the Ontario Superior Court of Justice reminds us that Ontario, for now at least, remains a strict compliance jurisdiction where all formalities must be followed in the execution and witnessing of wills and codicils.

During the pandemic, many lawyers have taken advantage of the ability to assist clients in the remote execution and witnessing of their wills, as well as the execution and witnessing of wills in counterpart. In order to validly do so, the will must be witnessed using audio-visual communication technologies. In Re Swidde Estate, 2021 ONSC 1434, however, the drafting solicitor and other witness were neither in the physical presence of the testator nor in her presence by way of audio-visual communication technology, at the time that a codicil was signed. Instead, the witnesses were in communication with the testator over the phone (without video) at the time that she signed the codicil. The codicil was later couriered to the witnesses who then each signed the same document. The Court found that this did not meet the requirements set out under the Emergency Order in Council permitting remote execution and witnessing of wills, and the codicil could not be admitted to probate. This case may serve as a reminder to drafting solicitors to ensure that all requirements are strictly adhered to. In that regard, readers may find it helpful to use a checklist, such as that available through our website (linked here), when assisting clients in the remote execution of wills or other estate planning documents.

Bill 245 is currently in its third  reading. Section 5 of Schedule 9 to the Bill provides for the Court validation of wills where a document sets out testamentary intentions but has not been properly executed or made. Such a provision would enable a judge in circumstances such as those in Re Swiddle Estate to validate a will or codicil that was not properly executed. This provision will come into effect no earlier than January 1, 2022 and will apply only to wills left by persons who have died following that date, subject to further changes before the legislation may be finalized and may ultimately take effect. Accordingly, especially while Ontario remains a strict compliance jurisdiction, it is important to exercise caution in ensuring that all wills we prepare are properly executed and witnessed.

Thank you for reading.

Nick Esterbauer

04 Feb

When will the Court Enforce a Settlement?

Rebecca Rauws Estate Litigation Tags: , , , , , , , , , , , 0 Comments

Sometimes when parties arrive at a settlement, notwithstanding that the settlement may objectively be in their interests, they may not necessarily be pleased with the outcome. If the settlement has been concluded and fully documented, however, a party who has had second thoughts will likely be out of luck if they want to avoid complying with the agreement. This is important because parties should usually be held to the bargains that they make in a settlement.

A settlement does not necessarily have to be in writing to be valid, but like any contract, there must be a “meeting of the minds” on the essential terms of the agreement.

In a recent decision, Daehn v Lalonde, 2021 ONSC 301, the court considered a motion to enforce a settlement where draft minutes of settlement had been exchanged, but not signed. The dispute between the parties underlying the settlement concerned the validity of competing Wills. The parties were engaged in negotiations between January and July 2019, during which time several offers and versions of draft minutes of settlement were exchanged. In mid-July, counsel for the responding parties to the motion advised the moving party that he would no longer be acting for the responding parties, and retracted all offers to settle made by the responding parties.

The moving party took the position that certain conduct by counsel for the responding parties should be taken as akin to acceptance of terms in the minutes of settlement. Such conduct included providing bank statements that had been requested as a condition of settlement, and proposing changes to some terms of the draft minutes without complaint about others. The court did not accept this argument, and did not find acceptance of the agreement by words or conduct of the responding parties.

The court briefly reviewed the law regarding validity and enforcement of settlements. Like a contract, a concluded settlement requires both a mutual intention to create a legally binding contract, and agreement on all essential terms of the settlement.

The court found that the responding parties never agreed to the terms of settlement. Despite the moving party’s argument that the responding parties had agreed to the sole “essential” term, the court found that it cannot be the case that the moving party alone can dictate what terms of the settlement are essential. The court concluded that a settlement cannot be imposed where no agreement was reached.

Thanks for reading,

Rebecca Rauws

 

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