Tag: wills

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.

11 Feb

Hull on Estates #588 – Rights and Limitation on an Attorney under a Power of Attorney

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

In today’s podcast, Natalia Angelini and Sydney Osmar discuss the OBA’s Institute Elder Law program recently chaired by Natalia and Kimberly Whaley. Natalia and Sydney delve into the debated issue of whether or not beneficiary designations are testamentary. Tune in to learn how the crowd voted.

Please note that, as a result of technical difficulties, the introduction of this podcast has been cut off.  Sorry for the inconvenience.

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.

Click here for more information on Sydney Osmar.

30 Jan

What Impact Might MAID Have on a Will Challenge?

Nick Esterbauer Capacity, Estate Litigation, Health / Medical, Wills Tags: , , , , , , , , , , 0 Comments

In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area.  As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?

Our regular readers will already be well aware that capacity is task, time, and situation specific.

Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment.  Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.

The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow.  While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different.  Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.

Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy.  While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.

Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.

Thank you for reading,

Nick Esterbauer

21 Jan

Hull on Estates #587 – Re Vaudrey: The Importance of Properly Providing for a Gift of Residue

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

On today’s podcast, Noah Weisberg and Rebecca Rauws discuss the recent decision of Re Vaudrey, 2019 ONSC 7551. In that case, the testator tried to disinherit one of his daughters, but failed to make provision in his Will for the disposition of the residue of his estate in the event that the residuary beneficiaries predeceased him (which they did). Without this, the residue of the testator’s estate was distributed on an intestacy—entirely to the daughter that he had wished to disinherit.

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 Noah Weisberg.

Click here for more information on Rebecca Rauws.

24 Dec

Hull on Estates #586 – Can a word document be a valid Will?

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

In today’s podcast, Jonathon Kappy and Sydney Osmar discuss the difference between strict compliance and substantial compliance regimes regarding the formality of 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 Jonathon Kappy.

Click here for more information on Sydney Osmar.

11 Dec

Muirhead Estate, Re: A Widowhood Clause from 1919

Suzana Popovic-Montag Estate & Trust, Estate Planning, General Interest, Wills Tags: , , 0 Comments

As we head towards the holiday season, it is a good time to think about the past. The weather is drab and the days are short, too, so we have ample opportunity to curl up in cozy chairs – rum and eggnog in hand, perhaps – to read old books, watch history documentaries, or otherwise reminisce of that which came before us. In line with this, in today’s blog we examine a case from 1919, Muirhead Estate, Re, which includes a decision that is both intriguing and continuously relevant for estate planning.

The deceased had left a widowhood clause in his will, by which he sought to discourage his widow from marrying another. Remarry, however, she did, in the event of which the executors of the Muirhead Estate applied to the court for directions as to the construction of the following clause:

“If my wife shall remarry the share hereby bequeathed to her shall revert to my estate and be divided among my said children.”  

The court had to determine if the clause violated public policy, for even in 1919, conditional gifts “in general restraint of marriage” had long been against public policy. It found that there was a distinction between a restraint of marriage and a restraint of remarriage. The former was clearly grounds for voiding a clause, but the latter was legally valid. In particular, restraining the “second marriage of a woman” was an established exception to the public policy rule. As for the second marriages of men, the court found that these may have still fallen under the umbrella of public policy, but it did not explain or elaborate why.

One hundred years hence, we see from cases such as Goodwin and Brown Estate that the decision in Muirhead Estate, Re, is still good law – though the distinction of second marriages of men and women is in all likelihood obsolete. According to the public policy rule, you cannot, through conditions in your will, prevent a beneficiary from marrying; nor can you promote marital breakdown through such conditions. If, however, you think that your widow looks best in perpetual black finery, or you have a distaste for suitors characteristic of Odysseus, the law likely allows for you to include a widowhood clause in your last will.

 

Happy planning – and thank you for reading!

Suzana Popovic-Montag and Devin McMurtry

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