Tag: wills

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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28 Jan

New Service Options for Probate Applications

Nick Esterbauer Estate & Trust, Executors and Trustees, Wills Tags: , , , , , , , , 0 Comments

In recent months, an Ontario Superior Court of Justice province-wide Notice to the Profession has permitted the filing of applications for a Certificate of Appointment of Estate Trustee with a Will or a Certificate of Appointment of Estate Trustee Without a Will (“probate applications”) by email.  Since then, the Rules of Civil Procedure were updated, effective January 1, 2021 to permit for the service of most court materials by email (among other updates).

Most recently, as of January 8, 2021, the Rules of Civil Procedure were further updated to provide for the options of serving notice of probate applications by email, courier, or personal service.  Amended sub-rules 74.04(7) and 74.05(5) now read as follows:

Notice under this rule shall be served on all persons, including charities, the Children’s Lawyer and the Public Guardian and Trustee, and, unless the court specifies another method of service, may be served by,

(a) personal service;

(b) e-mail, to the last e-mail address for service provided by the person or, if no such e-mail address has been provided, to the person’s last known e-mail address; or

(c) mail or courier, to the person’s last known address.

Previously, the Rules of Civil Procedure required the Notice of Application in respect of a probate application to be served by regular lettermail.

Forms 74.06 and 74.16 (Affidavits of Service in respect of probate applications) have also now been updated to refer to these new manners of service of the Notice of Application in respect of a probate application.  The revised forms are available here.

This further development in the modernization of estates law procedures is welcome and can be expected to better enable lawyers to assist clients in serving and filing probate applications more efficiently while working remotely during the pandemic and beyond.

Thank you for reading.

Nick Esterbauer

27 Oct

Separation, Divorce, and COVID-19: Don’t forget to update your estate plan

Nick Esterbauer Estate & Trust, Estate Planning, In the News, Wills Tags: , , , , , , 0 Comments

Recent reports suggest that divorce and separation rates are on the rise during the pandemic (with rates of separation cited as having increased as much as 20% to 57% from last year, depending on the jurisdiction).  This has been in part attributed to the stresses of lockdown and worsening financial situations.

Many Canadians may not be fully aware of the legal impact that separation and divorce have upon an estate plan, mistakenly believing that there is no real difference between marriage and a common-law partnership.  However, the distinction in Ontario remains important from an estate planning perspective – for example:

  • A common-law or divorced spouse does not have any automatic rights upon the death of a spouse who does not leave a will, whereas married spouses take a preferential share and additional percentage of a predeceasing married spouse’s estate on an intestacy;
  • A married spouse has the right to elect for an equalization of net family property pursuant to the Family Law Act on death, whereas common-law spouses have no equalization rights on death;
  • Marriage automatically revokes a will (unless executed in contemplation of the marriage), whereas entering into a common-law relationship has no such impact; and
  • Separation (in the absence of a Separation Agreement dealing with such issues) does not revoke a will or any gifts made to a separated spouse, whereas gifts under a will to a divorced spouse are typically revoked and the divorced spouse treated as having predeceased the testator.

While top of mind for estate lawyers, lawyers practising in other areas of law and their clients may not necessarily turn their minds to the implications that separation and divorce may have on an estate plan, particularly soon after separation and prior to a formal divorce.  With the potential for family law proceedings to be delayed while courts may not yet be operating at full capacity, combined with elevated mortality rates among certain parts of the population during the pandemic, it may be especially worthwhile in the current circumstances to remind our clients of the importance of updating an estate plan following any material change in family circumstances, including a separation or divorce.

Thank you for reading and stay safe,

Nick Esterbauer

29 Sep

Hull on Estates #598 – How has COVID-19 Impacted the Execution of Wills?

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

On today’s podcast, Rebecca Rauws and Garrett Horrocks discuss the execution of Wills in the midst of COVID-19, and how the emergency measures introduced this year may impact how Wills are executed in the future. The Globe and Mail article mentioned by Garrett and Rebecca during the podcast can be found here.

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 Rebecca Rauws.

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15 Sep

Hull on Estates #597 – Pour Over Clauses

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, Jonathon Kappy and Stuart Clark discuss Quinn Estate v. Rydland2019 BCCA 91, and the concept of “pour over clauses” more generally and whether you can leave a bequest in a Will to an already existing inter vivos trust.

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.

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02 Sep

A Lighter Look at Memento Mori

Suzana Popovic-Montag Wills Tags: , , 0 Comments

According to TheFreeDictionary.com, the idiom, “there’s no time like the present” dates back to 1562, and with the state of the world as it is, many people it seems, are scrambling to create Wills as soon as the present allows it.

Will planning requires honesty and is often regarded as an emotionally draining chore. While the drafting of a Will is, as the Romans would say, a Memento mori (a reminder of our mortality), it need not be a sad or troubling task. Planning for one’s estate can be much like the ultimate holiday shopping list. A Will allows us to make sure a treasured possession goes to the right person, and it ensures that our loved ones are provided for, in line with our wishes. Much like insurance, a Will can be thought of as preparing for the worst-case scenario. It can be thought of, particularly in times of strife, as a way to be of service to those people and organizations that we hold dear. “Yet,” as my grandmother would say, “there can always be a little room for whimsy.”

To my nephew Phillip who wanted to be in the Will, “hello you’re in the Will.”

-Unknown

In a 2015 collection of the “Strangest Wills of All Time,” The Guardian UK compiled 10 Will provisions where, they said, “the temptation to cause mischief or raise a smile from beyond the grave was too much to resist.” Here are but two examples.

After legendary comedian Jack Benny died in 1974, his widow, Mary Livingstone had a single red rose delivered to her every day. She would later learn that Jack had provided for flowers in his will. “A single red rose, delivered to Ms. Livingstone, for the rest of her life.”

When Roger Brown of Whales died in 2013, he left his seven closest friends, friends of 40 years, a bequest of £3,500 with the proviso that they go on a European holiday,  and raise a glass together.

While a Last Will and Testament is a serious document that ought to be treated as such, it does not have to be a dreary and dark affair, where all we think about is death and endings.

It is, after all, but one more way to look out for each other.

Thanks for reading,

Suzana Popovic-Montag and Daniel Enright

04 Aug

When does an Attorney Accounting Period Start?

Rebecca Rauws Passing of Accounts Tags: , , , , , , , , , , , , 0 Comments

Sometimes there is a grey area when it comes to a person’s loss of capacity, and the time when his or her attorney for property first began to act on an incapable’s behalf. In such a situation, it can be difficult to determine the starting date for an attorney’s fiduciary accounting period.

The recent decision of The Public Guardian and Trustee v Willis at al, 2020 ONSC 3660, dealt with this kind of situation. One of the issues was whether the respondent should be required to pass his accounts for the period before he became the attorney for property for his mother, Mrs. Willis.

The respondent was his mother’s only living child, and was acting as her attorney pursuant to a power of attorney for property dated May 2, 2018. Mrs. Willis was assessed as incapable of managing her property in September 2018, but the decision notes that she had been “clearly suffering from some cognitive deficits prior to June 2018”.

The Public Guardian and Trustee (the “PGT”) sought to have the respondent provide an accounting back to January 1, 2015, because the respondent had arranged several mortgages on his mother’s behalf in that period. The respondent, however, only agreed to pass his accounts starting from May 2, 2018 when he became his mother’s attorney for property. One of the main reasons that the respondent did not want to pass his accounts prior to that period was due to the expense, because it was clear that Mrs. Willis was insolvent, and the respondent would likely have to personally bear the costs of passing his accounts. The PGT clarified during the hearing that it was not seeking court format accounts for the period from 2015-2018, but only “justifiable explanations of money coming in and out of his mother’s RBC account and how mortgage advances were spent plus all relevant disclosure.”

The court found that the respondent had assisted his mother with paying bills and arranging mortgages prior to the time that she was assessed as incapable. It was also noted in the decision that there was “no doubt” that even while Mrs. Willis was capable, she was unsophisticated, vulnerable, and relied on the respondent. The respondent also had access to his mother’s bank account before January 1, 2015.

The court held that, even if an individual is not specifically appointed in a fiduciary role (such as an attorney) one must look at the types of duties that the individual was carrying out to determine if they were acting in a fiduciary capacity. On this basis, the court found that the respondent had been acting as a fiduciary for Mrs. Willis for some time, and determined that he should provide detailed explanations of financial transactions upon the PGT’s request from January 1, 2015 to May 1, 2018 (in addition to the passing of accounts to which the respondent had consented starting from May 2, 2018).

Thanks for reading,

Rebecca Rauws

 

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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.

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