Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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Happy New Year!

It promises to be an interesting year in estates law with exciting changes headed our way. Under the guidance of the Honourable Mr. Justice Brown, the Estates List Practice Direction is being updated and should be implemented before the end of the year.

The Ontario Bar Association is starting a listserv for Trusts & Estates section members. This email based mailing list will allow members to post questions or share their thoughts with other members. Members can expect an email later this month from the Ontario Bar Association with details on how to subscribe.

The Law Society's new client identification and verification requirements came into force on December 31, 2008. The Law Society is offering a teleseminar on January 13, 2009 to discuss the new requirements and to assist with any questions practitioners may have.

Thanks for reading,

Diane Vieira

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Listen to Procedural decisions that came out of the Ontario Superior Court of Justice

This week on Hull and Estates, Paul Trudelle and Diane Viera, discuss procedural decisions that came out of the Ontario Superior Court of Justice and in particular a few decisions from the honourable Mr. Justice Brown of the estates list in Toronto.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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I hope everyone is having great holiday season.

With the close of 2008, we turn and look to the promise of 2009. In looking ahead to 2009 many may wonder if they have properly protected and provided for those they intend to protect should something unexpected happen to them. Questions may also arise regarding whether a spouse or parent has taken steps to provide for themselves and/or those they intend to provide for.

While there are no doubt many things to consider for the new year from a family perspective, perhaps this is the year to resolve to consider, or reconsider, whether your family’s legal affairs have been properly planned.

I wish everyone a healthy, happy and prosperous 2009.

Happy New Year! Craig

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Offers to settle and more specifically, Rule 49.10 of the Rules of Civil Procedure, are intended to force the parties in a legal proceeding to consider the settlement of a matter prior to trial failing which, costs consequences will result if an offer is more favourable than the result obtained at the trial.

In the general litigation context, the Ontario Court of Appeal has held that the Court should depart from the prima facie costs consequences in Rule 49.10 only where, after giving proper weight to the policy of the rule and the importance of a reasonable predictability and the even applicability of the rule, the interests of justice require departure.  

The applicability of offers to settle and Rule 49 in a Will challenge context has been considered by Judges with different results. In the often quoted case of Olenchuk Estate, Re.  the Court found, amongst other things, that it would seem somewhat incompatible with the nature of these proceedings to apply rules designed to encourage settlement of adversarial, contentious, proceedings and when there appears to be a reasonable question whether the deceased was mentally capable of making the Will that is propounded; it imposes an obligation on the Court to be satisfied that the Will was the product of a capable testator before putting on it the imprimatur of the Court. In Olenchuk, the Court further held that Rules designed to encourage settlement of contentious litigation can be applied in estate matters, but the difference between certain kinds of estate litigation and other forms of litigation can make it difficult to apply Rules of Civil Procedure to estate proceedings.

The Ontario Court of Appeal discussed the traditional approach and modern approach to awards of costs in estate litigation in its 2005 decision of McDougald Estate v. Gooderham. The Court found that the modern approach to fixing costs in estate litigation is to carefully scrutinize the litigation and, unless the Court finds that one or more of the public policy considerations, set out in its decision applies, to follow the costs rules that apply in civil litigation.

The Court of Appeal noted that “Gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation.”

In a Will challenge, offers to settle, whether informal or formal can be an important tool in regard to the disposition of costs; perhaps more so in light of the approach for costs set out in McDougald v. Gooderham.

Enjoy the Holidays! Craig

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Facing a frivolous Will challenge can be very frustrating, time consuming and costly.

In a typical Will challenge proceeding, the process can involve an application/motion for directions, documentary discovery from the parties and non parties, examination of the parties and non parties, interlocutory motions, mediation (informal or formal), expert reports, a pre-trial conference and a trial.

In the typical Will challenge, an order for directions can be the best tool a party has, at first instance, to manage a Will challenge. An order for directions allows a party to craft the manner in which a Will challenge may proceed and to seek the assistance of the court with obtaining interim and/or ancillary procedural relief to the Will challenge. The provisions included in an order for directions, may depend on, among other things, the issues and parties involved, the evidence to be marshalled, whether mediation is a requirement and, if not, how the evidence known, and/or to be obtained, might be utilized in the pursuit of settlement and the claim, and other relief in respect of the estate that may be necessary.

In the case, however, where the Will challenge is frivolous and the propounder of the Will wishes to short circuit the typical Will challenge process, consideration can be given to, among other things, a motion for summary judgment and/or security for costs. Such a motion can be a powerful tool in litigation in the appropriate circumstances.

An offer to settle can also be used to try and force an opposing party to resolve a frivolous Will challenge or face potentially substantial costs consequences if the proceeding is continued.

Enjoy the Holidays! Craig

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The Ontario Court of Appeals recently affirmed the decision of Mr. Justice Glithero to refuse a motion to add a solicitor and his law firm as a defendant party to a proceeding for breach of contract, because the claim was discoverable more than two years prior to the motion.

In Hughes v. Kennedy Automation Limited, 2008 ONCA 770, the plaintiffs were suing the defendant for non-payment under a purchase and sale agreement for shares.  The purchase and sale agreement had been drafted by the defendant corporation's solicitor; the plaintiffs had not retained their own lawyer to act for them in the share sale transaction.   The plaintiffs became aware of the original non-payment on July 31, 2005.  However, the plaintiffs waited until November 2006 to retain their own lawyer to sue the defendant. 

In November 2007, the plaintiffs brought a motion to add the defendant's solicitor and his law firm, for breach of fiduciary duty and negligence.  The plaintiffs were alleging that the solicitor acted in a conflict of interest and failed to recommend they seek independant legal advice.  The motions judge ruled that the claim against the solicitor and his law firm were barred by the two-year limitation in section 4 of the Limitations Act, 2002.  On the evidence before him, Glithero J. was satisfied that the identity of the solicitor and his law firm, the facts surrounding his involvement and the fact of non-payment were all known to the plaintiffs by July 31, 2005.  Therefore the presumption in section 5(2) of the Limitations Act, 2002 applied to make the claim discoverable by that time, more than two years before the November 2007 motion to add the solicitor and his law firm.   The Ontario Court of Appeals affirmed this decision.

Enjoy your vacation,

Chris Graham

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The Ontario Court of Appeals recently affirmed the decision of Mr. Justice Glithero to refuse a motion to add a solicitor and his law firm as a defendant party to a proceeding for breach of contract, because the claim was discoverable more than two years prior to the motion.

In Hughes v. Kennedy Automation Limited, 2008 ONCA 770, the plaintiffs were suing the defendant for non-payment under a purchase and sale agreement for shares.  The purchase and sale agreement had been drafted by the defendant corporation's solicitor; the plaintiffs had not retained their own lawyer to act for them in the share sale transaction.   The plaintiffs became aware of the original non-payment on July 31, 2005.  However, the plaintiffs waited until November 2006 to retain their own lawyer to sue the defendant. 

In November 2007, the plaintiffs brought a motion to add the defendant's solicitor and his law firm, for breach of fiduciary duty and negligence.  The plaintiffs were alleging that the solicitor acted in a conflict of interest and failed to recommend they seek independent legal advice.  The motions judge ruled that the claim against the solicitor and his law firm were barred by the two-year limitation in section 4 of the Limitations Act, 2002.  On the evidence before him, Glithero J. was satisfied that the identity of the solicitor and his law firm, the facts surrounding his involvement and the fact of non-payment were all known to the plaintiffs by July 31, 2005.  Therefore the presumption in section 5(2) of the Limitations Act, 2002 applied to make the claim discoverable by that time, more than two years before the November 2007 motion to add the solicitor and his law firm.   The Ontario Court of Appeals affirmed this decision.

Enjoy your vacation,

Chris Graham

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The words "aging population" have graduated from being an overworked cliche to a trite observation.  The implications are intuitively obvious in many contexts.  We've blogged here on this topic before and what it means for lawyers.  Our understanding of the implications continues to evolve, and it helps to keep an eye on other countries with similar levels of economic development, social services and legal cultures (and bigger populations hence more money to study the issue). 

One thing is becoming increasingly clear, and a quick tour over the ocean makes this crystal clear: our bodies seem to be outlasting our minds.

We all know the implications for increased demand for legal guardianship expertise, especially for The Sandwich Generation, and potential litigation later (which is enhanced by our general lack of knowledge of the depth of dementia across the population).  The Alzheimer's Society (see the Canadian website for a local view) states that 1 in 3 British over 65 years of age die from the disease.  The over-65s will constitute 25% of the UK's population by 2032, which means that 8% of all deaths (at least) in the UK will be caused by Alzheimers.  In other patients, the disease may still be present but not the cause of death.

Interestingly, Alzheimers was only the No. 5 cause of death among Americans over 65 years of age in 2004.  However, it turns out that Alzheimers and other forms of dementia often do not get noted on death certificates, at least in Boston.  If a similar trend exists elsewhere in the U.S., that might alter U.S. death statistics by raising the profile of Alzheimer's and dementia generally.    

Fire and brimstone, all is lost?  Not entirely.  Medical research can always help.  Also, see this article which offers a detailed applied statistical analysis on the U.S. demographic bubble (or lack thereof perhaps) in a non-estates context, yet still relevant to any lawyer to whom demographics is relevant.

Have a great day,

Chris Graham

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Listen to Administering Assets that are Personal Property

In this episode, Ian and Suzana discuss how to approach administering assets that are personal property items.  This is particularly relevant in the holiday season when valuable gifts are often exchanged, be they paintings, furniture or jewelry.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our

blog

.