Tag: wills

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

 

You may also enjoy these other blog posts:

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

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