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

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Hello, my name is David M. Smith and I am a partner (and now one of the resident bloggers) at Hull & Hull LLP. The focus of this week's blogs will be on beneficiary designations. While the natural tendency is to focus on the assets of the estate, we know that the reality is that, quite often, those assets which pass outside of the estate by way of beneficiary designation will exceed the value of the estate assets.

Indeed, an increasingly common estate planning tool is to hold as many assets as possible outside of the estate, primarily as a legitimate means of avoiding estate administration tax (more commonly known as probate fees) and, in certain cases, protection from creditors.

The most common example of such assets that come to mind are Life Insurance, Registered Retirement Saving Plans ("RRSP") or Registered Retirement Income Funds ("RRIF"). Similarly, (and an issue to be considered in future blogs), assets that are jointly held (unless impressed with a trust for the estate) will pass to the surviving joint owner by right of survivorship.

The making and revoking of beneficiary designations are not always simple matters and, regrettably, litigation may ensue where there is uncertainty. Recent caselaw has raised some interesting twists on this developing area of estate litigation.

In Ontario, the provisions of Part III of the Succession Law Reform Act relating to the making of a beneficiary designation are contained in section 51 which reads as follows (within underlining added for emphasis):

s. 51(1) A participant may designate a person to receive a benefit payable under a plan on the participant's death,

(a) by an instrument signed by him or her or signed on his or her behalf by another person in his or her presence and by his or her direction; or (b) by will, and may revoke the designation by either of these methods.

s. 51(2) A designation in a will is effective only if it relates expressly to a plan, either generally or specifically.

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In our final blog on this topic (for now), we wanted to look at Canada's perspective in regard to viatical settlements. At page 10 of the report produced by the Canadian Centre for Elder Law Studies, the study reviews the current law in Canada.The authors note that, in Canada, laws regulating the business of insurance and insurance contracts are primarily found in provincial and territorial statutes. An example of the legislation prohibiting trafficking in life insurance policies is set out in Section 26 of the British Columbia Insurance Act, where the legislators state that any person other than an insurer or its authorized agent ... who traffics or trades in life insurance policies for the purpose of procuring the sale, surrender, transfer, assignment, pledge or hypothecation of them to himself or herself or any person, commits an offence against this Act.

The authors of the study comprehensively set out arguments for and against legalizing viatical settlements (see pages 22 to 30 of the report).

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As we review the study paper prepared by the Canadian Centre for Elder Law Studies on viatical settlements, we see that the authors note that a typical viatical settlement contains six steps.

Firstly, the holder of a life insurance policy initiates the transaction by filling out and submitting an application and providing any required supporting documentation to an interested company. The policyholder, him or herself, is typically referred to as the "viator" and the company is typically referred to as a "viatical settlement provider" or "VSP" (see page 3 of the report). To even be considered for a viatical settlement, a viator must have diminished life expectancy.

Secondly, the viator must submit medical and insurance records to the VSP for evaluation.

Thirdly, the VSP reviews the information and essentially determines whether or not the viator is eligible for a viatical settlement. This third step is, of course, a combination of insurance underwriting and medical analysis. In the U.S. experience, both whole life and term life insurance policies are acceptable, as are group life insurance policies. The expectation is that the policy is in good standing and that it not restrict assignment. Furthermore, it is expected that the policy has been in full force for at least two years.

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Continuing with our review of the Canadian Centre for Elder Law Studies' paper on viatical settlements, we note that the paper is broken down into 7 parts, starting with a brief introduction and an examination of typical viatical settlements. There is also a review of American academic articles and the study looked at the historical developments of viatical settlements in the U.S.

The study goes on to examine the current law in Canada and looks at leading policy arguments for and against removing the legal barriers to viatical settlements in Canada. The study also examines in detail the leading Canadian model for law reform drafted in 2001 by Ontario's Financial Services Commission. The last two parts of the study include a review of several issues for reform and a conclusion to the study paper.

The origins of the project arose out of the Program Committee of the British Columbia Law Institute, whereby they identified examining the possibility of legalizing and regulating viatical settlements as an innovative area for legal reform.

After having reviewed the study paper on viatical settlements, it is clear that, while this is an innovative area of legal reform, certainly in the United States, the concept of viatical settlements is a growing trend and one that will no doubt be considered over the next few years as the increase in population puts pressure on the market forces.

Given that viatical settlements are rare in Canada, the study paper looked at the elements of a typical viatical settlement from the United States as providing the reference point. Again, while there are different approaches in the United States, the study notes (at page 3) that one commentator who recently reviewed the American market concluded that the typical viatical settlement contains six steps.

We will look at the six steps in our next blog.

All the best, Suzana and Ian. --------

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The Canadian Centre for Elder Law Studies has produced an excellent study paper on viatical settlements.

In the executive summary, the study paper defines a viatical settlement as a transaction in which an insured person with diminished life expectancy transfers the entitlement to receive the death benefit under the policy of insurance to another person. This other person agrees immediately to pay the insured person an amount that is less than the face value of the death benefit and undertakes to pay the premiums for the insurance policy as they come due. A

s is noted in the executive summary, in most Canadian jurisdictions, legislation directed at trafficking in insurance policies (which has its origins in the Depression), renders viatical settlements illegal. There is a small viatical settlement industry based in some of the provinces that lack this legislation. However, in the U.S., the viatical settlement industry has been very active and has, for example, focused on AIDS patients and others suffering from terminal diseases. As such, the viatical settlement industry has expanded considerably.

The aim of the study paper produced by the Canadian Centre for Elder Law Studies was to provide the groundwork for law reform in this area. More on the details of the study in our next blog.

All the best, Suzana and Ian. --------

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In Hull on Estate and Succession Planning Podcast #18, we discussed three more frequent causes of estate litigation:

1) Poorly drafted documents;

2) Lack of sufficient planning for the estate assets;

3) Improper actions of the trustee or executor.

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In Hull on Estates Episode #18, we discussed security for costs in the area of estate litigation, focusing on the role of contingency fees.

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In a recent blog, we wrote about some of C.C. Chapman's thoughts as shared with his listeners in his podcast "Managing the Gray". In the podcast released on June 4, 2006, C.C. provided listeners with a few ways to help "push" new media and the whole social media agenda.

The first suggestion he made is that we need to be prepared to play the fool. In other words, if we are innovative and a discussion is moving down one direction, we need to be prepared to think "outside the box" and step in with what may seem to be a foolish suggestion.

C.C. reminds us that we need to make sure that we have plenty of ammunition and armour in such situations. That's because people are going to come at you and attack you from many angles - from the finance through to technology issues, through to business and practical considerations such as moral and ethical issues. We need to be ready for those attacks and have a thick skin.

C.C. goes on to say that we need to be ready to answer all of the questions and to be prepared to address the concerns of the naysayers. This is our "armour" in such situations. In addition, we need to be ready, not only with the armour, but also with the ammunition, and be prepared to provide tangible examples to illustrate the real nature of the allegedly foolish suggestion. C.C. reminds us that we have to make sure that we have done our research and that we are ready in that situation.

That's all for now ... All the best, Ian and Suzana. --------

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Some of the great Podcasters note that, in the future, we will have more ear time than eye time.

Ian recently looked at an interesting book by Evan I. Schwartz entitled, "Digital Darwinism". In his book, Schwartz compares the competitive struggle to the battle between species that occurs in the natural environment. He concludes that, in order to succeed, companies must be better than their competitors, much like the survival of the fittest in nature. Whatever market niche they select, they have to be "smarter, faster, more innovative, and more adaptable" than ever, so that they do better than others.

After examining the successes and failures of many different e-commerce competitors, the author identifies key strategies to survive and thrive on the Web. In Digital Darwinism, we are presented with "7 Breakthrough Business Strategies for Surviviing in the Cuthroat Web Economy". They are:

1. Build a brand that stands for solving problems;

2. Allow your prices to fluctuate freely with supply and demand;

3. Let affiliate partners do your marketing for you;

4. Create valuable bundles of information and services;

5. Sell custom-made produces online, then manufacture them;

6. Add new value to transactions between buyers and sellers; and

7. Integrate digital commerce with absolutely everything.

Schwartz is also the author of "Webonomics", which talks about "9 Essential Principles for Growing Your Business on the World Wide Web". Blogging is one of those innovative marketing strategies that helps you survive in the Digital Darwinism world. Blogging uses the concept of social software in allowing for direct and indirect interaction from one individual to a group of individuals.

As a good examples of how big the social interaction has grown, the program "My Space", currently has approximately 40,000,000 dating participants. While this program has a wide variety of social interaction, including dating and teenager participants, from a business perspective, for example, the music business, My Space is an essential place to be. Just because a program appears to be on the surface simply something for consumers, such as a dating service, when you look deeper within the service you may find that it incorporates many niche market produces and services. Therefore, it may well be a business opportunity, given the numbers involved.

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Dr. Ken Envoy has written a book, "Make Your Site Sell! 2002", which initiated his creation of a course package for Internet marketing. The package explains the three steps of successful Internet marketing. Make Your Site Sell is a guide that instructs readers how to increase sales through leading with product. The course teaches you how to develop and position products for the Web, whether you sell one product or sell many in an online store. Furthermore, we're told that you must create a site that attracts customers and showcases your product and, thus, brings targeted traffic to your site. Evoy also impresses the importance of having a vision for your online business in order for you to be able to successfully work towards that goal.

Envoy proclaims that there are essentially four fundamental realities to using the Web to provide information and directing interested traffic your way - Content, Traffic, Pre-Selling and Monetization.

One must not forget that, as a lawyer, your billable time determines your income AND your non-billable time determines your future.

Marketing is a full contact sport. However, the business side of the law should not be forgotten and it can be helpful to, from time to time, create a business plan to serve as a blueprint for your law firm's financial success. Without a business plan, a firm is essentially rudderless, and day-to-day decisions are likely to be haphazard and reactive, in stark contrast to those firms implementing a well thought-out business plan. Designed for lawyers, "The Lawyer's Guide to Creating Your Business Plan" is a complete, easy-to-use customized Windows-based software package, that is the fastest, easiest way to research and write a winning business plan for a law firm. It's perfect for new or existing law firms, of every size.

All the best, Suzana and Ian. --------

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Alongside the emergence of the concepts of blogging and podcasting, there are a host of new hardware and software programs geared to help the average consumer stay up-to-date with these revolutionary communication mediums. For instance, www.pocketpc.com is a Microsoft website that showcases various handheld mobile devices, which operate in a similar fashion to the Blackberry and the Treo. These Windows-powered PCs are a great option for online business and personal needs on the go, and they make the consumption of our blog and podcast, possible anywhere, even more efficient. You determine when and where you want to listen and learn.

An interesting and humourous site we discovered while roaming the web for podcasts is www.topofthepods.com. Every weekday, Top Of The Pods discusses a new top ten list via podcast. The hosts, Jon and Rob, bring you views, reviews and top tens. Each podcast is between 15 to 30 minutes long and covers a different topic each day. Listeners are encouraged to send in their top ten lists with an emphasis on obscure, wacky and weird topics ranging from top ten Bond films to top ten dining faux pas.

Reid Trautz is the creator of the blog "Reid My Blog! Furthering Innovation in Management, Governance & Ethics for Lawyers". He is one of the leading consultants in the United States for practice management and he specializes in counseling lawyers. His well-written and informative blog page reflects the depth of his knowledge, as he moves beyond legal advice into the "nitty gritty" of the legal profession, exploring the psychology of both the lawyer and the client and focusing on dissecting the expectations of clients. Trautz expresses that an understanding of what a client wants allows a lawyer to better serve the client's needs and find him, her or it an appropriate solution for what is often a very personal and upsetting situation.

Trautz recommends the practice management book by Gerald Riskin, a global management consultant and advisor to many of the worlds' largest law firms. In his book, "The Successful Lawyer: Powerful Strategies for Transforming Your Practice", Riskin explains why the foundation of a successful practice resides in the management of ideas, the management of the client relationship, active listening, the managing of client expectations, and putting these expectations to work - all topics that are similarly explored in Trautz' blog.

Furthermore, Riskin allots a large section of his book to a discussion of the business side of the law. Trautz also considers the distinction between the practice of law as a profession and the law practice as a business, noting the relevance of podcasts and blogs as an effective forum for lawyers to keep themselves up-to-date with this ever-changing world, and thus to act accordingly.

All the best, Ian and Suzana. --------

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While a claim for damages against the assets of an estate for breach of parental fiduciary duty may be rare and fraught with evidentiary problems, it is clearly founded on the strong common law principals of fiduciary duty and the overall concept is supported by the Supreme Court of Canada. Given the nature of these claims, a case of this type can be persuasive and can present a compelling problem for any executor of an estate.

The head of damages has been identified by the Supreme Court of Canada and it really is a question of quantum. In the right circumstances, combined with a proper and legitimate will challenge, a claim of this nature can change the overall dynamics of any estate litigation matter. At the very minimum, it may have a salutary effect on the considerations of the executor and beneficiaries.

Nonetheless, given the evidentiary frailties of these types of claims, one must be careful not to embark on such an action without careful consideration of the cost consequences. In this regard, see Fox v. Fox Estate (1994), 5 E.T.R. (2d) 174 (Ont. Gen. Div.), (1996) 10 E.T.R. (2d) 229 (Ont. C.A.), Application for Leave to Appeal to the Supreme Court of Canada submitted September 13, 1996 and refused January, 1997; Schnurr, B.A., "Estate Litigation - Who Pays the Costs?" [1991], 11 E.T.J. 52; and Hull, I.M., "Costs in Estate Litigation", 18 E.T.R. (2d) 218.

We hope this review of this interesting area of fiduciary duties has been helpful.

All the best, Suzana and Ian. --------

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During Hull on Estate and Succession Planning Episode 17, we continued our discussion on the causes of Estate Litigation. Four more causes were established as:

1) The reluctance to seek advice;

2) Acrimonious extended family;

3) Frailties and secrets;

4) Intransigent family members.

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During Hull on Estates Podcast #17, we discussed the question of costs in Estate Litigation, the British experience regarding costs and the case of Carapeto v. Good, [2002] WTLR 1305, [2002] EWHC 640 (Ch.)

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13. In an action by or against the heirs, next-of-kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

See also Schnurr B.A., "Estate Litigation - Requirement of Corroboration", 5 E.T.Q. 42.

Due to the evidentiary difficulties of these types of claims, one of the first steps that a claimant should consider taking is to obtain an expert's opinion.

The expert's opinion should contain evidence for the Court to consider with respect to such things as the recollections of the claimant, the details of abuse over the years and the results of both the mental and physical ramifications of that abuse.

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Notice of Objection to Accounts - 74.18(7)

Subject to subrule (8), which applies only to The Children's Lawyer and The Public Guardian and Trustee, a person who is served with the documents under subrule (4) or (5) and who wishes to object to the accounts shall do so by serving on the estate trustee and filing with proof of service a Notice of Objection to Accounts (Form 74.45), at least 20 days before the hearing date of the application.

Hearing - 74.18(12)

No objection shall be raised at the hearing that was not raised in a Notice of Objection to Accounts, unless the court orders otherwise.

Most claims or objections will arise out of a claim by a beneficiary of alleged negligence by the executor or trustee, by reason of the executor or trustee not exercising the proper standard of care pertinent to his or her office.

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As to the question of fiduciary duty between parent and child, the Supreme Court of Canada in M.(K.) v. M.(H.) held that the relationship of parent and child is fiduciary in nature and that incest was a breach of the parent's fiduciary duty to protect the child's well being and health.

Limitation Periods

It is perhaps the most compelling defence available to counsel defending a parent in such cases that the claim has been brought outside of the conventionally recognized limitation periods.

A significant portion of the decision in M.(K.) v. M.(H.) was devoted to the question of the limitation defences raised by the parent.

In contrast, counsel for the child argued that incest was a separate and distinct tort which was not subject to any limitation period; that incest constituted a breach of fiduciary duty by a parent and is not subject to any limitation period; and if a limitation period applies, the cause of action does not accrue until it is reasonably discoverable. Furthermore, it was argued that the child was of unsound mind pursuant to section 47 of the Limitations Act; that the tort is continuous in nature and the limitation period does not begin to run until the child is no longer subjected to parental authority and conditioning; and that the equitable doctrine of fraudulent concealment operates to postpone the limitation period.

The limitation defence failed and the Supreme Court of Canada held that the tort claim, although subject to limitations legislation, does not accrue until the child is reasonably capable of discovering the wrongful nature of the parent's acts and the nexus between those acts and her injuries. Furthermore, that the discovery took place only when the child entered therapy and the lawsuit was commenced promptly thereafter.

All the best, Suzana and Ian. --------

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As is sometimes the case, an unequal distribution of an estate as between children can arise from a testator who has had a long history of mental illness, chronic alcoholism or other such personal reasons, which may affect the testator's state of mind over a period of many years.

For example, if a child who has been treated unequally grew up in a home where he or she suffered through instances of physical violence, as between the parents and him or herself, this may be the type of fact situation to consider when looking to pursue a claim for breach of fiduciary duty of parental obligations. Similarly, if the unequally treated child lived in a home that was constantly in turmoil, as a result of a chronically alcoholic parent, this situation should also be considered in the context of the fiduciary obligations of a parent.

In our view, one must find several compelling supporting facts to bolster any claim of breach of fiduciary duty or breach of parental obligation. Such facts should also be combined with a clear and identifiable estrangement as between parent and child.

Parental Obligations

In the decision of M. (K.) v. M. (H), the Supreme Court of Canada considered the whole concept of what is meant by the term "parental obligation".

The Court considered this issue in the context of a particularly gruesome and egregious set of facts.

In M.(K.) v. M.(H.), the Supreme Court of Canada examined the parent-child relationship in the circumstances of long-standing allegations of incest and abuse by a parent to a child.

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A claim for breach of the parent/child fiduciary relationship can have an impact in the context of claims in estate litigation matters.

 As is sometimes the case, parents may choose to treat their children unequally under the provisions of their will. In these kinds of circumstances, a disgruntled child may challenge the validity of the will and so become a party to estate litigation.

A further claim against the assets of the estate for breach of parental fiduciary duty may be a useful avenue for a child to pursue against the estate of a parent.

As has been known to happen, a parent may have a long-standing bias against one child or another, which is reflected in an unequal distribution of his or her estate. This long-standing bias may have been as a result of an estrangement as between the parent and the particular child. The reasons for the estrangement are usually numerous and it can be difficult to pinpoint precisely the actual reason for the unequal treatment of the child.Often, the estrangement between parent and child dates back many years and, in some situations, the breakdown of the relationship ties closely to the child leaving home at an early age and then not pursuing any meaningful contact with his or her parent.

In our view, when dealing with these kinds of cases, a careful inquiry must be undertaken into the circumstances of the estrangement, dating even back to childhood.

More to come on this interesting topic in a future blog ...

All the best, Suzana and Ian. --------

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During Hull on Estate and Succession Planning Podcast #16, we discussed 3 of the 10 causes of estate litigation. The 3 causes discussed are as follows:

1) A lack of understanding on the need for an estate plan;

2) An estate plan which is no longer current;

3) Inadequate estate planning advice.

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During Hull on Estates Podcast #16, we discussed the case of Harrison v. Fallis, a recent decision of Madam Justice Eberhard date June 12, 2006. --------

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A common area of complaint stems from an allegation that the executor or trustee was negligent in his or her efforts to administer the assets of an estate or trust. For a comprehensive discussion of the personal liability of trustees, see Maurice C. Cullity, Q.C., "Personal Liability of Trustees and Rights of Indemnification", (1996) 16 E.T.J. 115.

Generally speaking, most claims or objections to accounts arise out of what is perceived by beneficiaries to be negligence or failure on the part of the executor or trustee to maintain a proper standard of care and skill in his or her office. The most common complaints arise out of the following situations:

• investments by the executor or trustee which are not authorized by the will or by the law;
• the failure to provide a proper mix of investments so as to balance competing interests, such as life interests as opposed to remainder interests;
• the negligent or improper investment by the executor or trustee in investments of a speculative nature;
• an executor or trustee can be held liable for not maintaining the value of assets, such as a residence, by effecting proper repairs and would be liable for such neglect;
• executors or trustees must be extremely careful to make sure that all proper considerations are taken into account in making elections under the Income Tax Act, so as to avoid any criticism by the beneficiaries;
• care must be taken by an executor or trustee to ensure that prompt filings of returns are made and that penalties and interest payable on late filings are not incurred; and
• while trustees are seldom culpable for what are perceived by beneficiaries to be unnecessary delays, care must be taken to ensure that damages are not in fact incurred by the beneficiaries by reason of delays caused by inattention.
  

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In a recent podcast presented by one of the world's leading podcasters, C.C. Chapman (June 17/06 - Managing the Gray) made several important points. He was discussing the fact that, in a recent podcasting chat forum that he was participating in, someone suggested that podcasting was not something that a business should be interested in as it was purely an entertainment vehicle.

C.C. Chapman strongly disagreed with this suggestion and indicated that, at the end of the day, podcasting is truly about content and every business is in the business of producing content. He emphasized the fact that quality content is something that a business always wants to reach out to its customers with, and he stressed that we must not engage in podcasting that is more sales-oriented. He further emphasized the fact that we should be focusing our podcasting on the content, as opposed to the presentation and the glitzy format.

C.C. Chapman cites as an illustration the use of podcasting by mainstream media such as BusinessWeek Magazine. BusinessWeek Magazine has a weekly podcast that is focused on its weekly cover story. The editor and the author of the article conduct a podcast to expand upon the paper version of the story on the cover of BusinessWeek. This is an excellent illustration of how to use podcasting in a business environment and how to use it in a way that enhances an existing marketing plan.

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As you know, we have dedicated a few recent blogs (see our June 30, 2006 and July 3, 2006 posts) to the Ontario Court of Appeal's decision in Cummings v. Cummings.

Perhaps, most notably, in determining the quantum of support to award in this decision, the Ontario Court of Appeal endorsed the concept of dependant's support as a re-distribution of family wealth or property.

In this regard, the Court stated (at paragraph 48):

There is another reason why the Tataryn approach fits in Ontario as well. The view of dependant's relief legislation as a vehicle to provide not only for the needs of the dependants (thus preventing them from becoming a charge on the estate) but also to ensure the spouses and children receive a fair share of family wealth, was also important to the Court's analysis in that case.

Just how awards for support under the Family Law Act will be affected by the Cummings v. Cummings decision remains to be seen. In resolving that problem, however, consideration of both the Tataryn and the Cummings cases must be given.

We hope you enjoyed our review of this important turning point in the area of dependant's relief, and we intend to continue to follow the issue and discuss further developments in future blogs.

All the best, Suzana and Ian. --------

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In a recent series of blogs (see our June 14, 15 and 16, 2006 posts), we discussed the form of an executor's or trustee's accounts. In our experience, as complaints against a trustee and/or an executor often stem from this issue, we felt it would be worthwhile to continue to explore this topic.

As we've mentioned in the past, in Ontario, Rule 74.17 of the Rules of Civil Procedure sets out an exact summary of what is expected in regard to the form of the accounts. In particular, it provides as follows:

(1) Estate trustees shall keep accurate records of the assets and transactions in the estate and accounts filed with the Court shall include,

(a) on a first passing of accounts, a statement of the assets at the date of death, cross-referenced to entries in the accounts that show the disposition or partial disposition of the assets;

(b) on any subsequent passing of accounts, a statement of the assets on the date the accounts for the period were opened, cross-referenced to entries in the accounts that show the disposition or partial disposition of the assets, and a statement of the investments, if any, on the date the accounts for the period were opened;

(c) an account of all money received, but excluding investment transactions recorded under clause;

(d) an account of all money disbursed, including payments for trustee's compensation and payments made under a Court order, but excluding investment transactions recorded under clause;

(e) where the estate trustee has made investments, an account setting out,

(i) all money paid out to purchase investments,

(ii) all money received by way of repayments or realization on the investments in whole or in part, and

(iii) the balance of all the investments in the estate at the closing date of the accounts;

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In Hull on Estate and Succession Planning Podcast #15, we continued with our discussion on Powers of Attorney for Property, from both a non-contentious and contentious perspective, and we discussed Powers of Attorney for Personal Care as well.

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In Hull on Estates Podcast #15, we added some commentary to our last podcast on the Leskun v. Leskun decision, and then examined the recent Alberta Queen's Bench decision in Popke v. Bolt, [2005] A.J. No. 999; Serdahely Estate (Re), [2005] A.J. No. 16201. --------

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In Cummings v. Cummings, the Court of Appeal affirmed the decision made by the application judge at first instance.

In coming to this conclusion, the Court of Appeal was strongly influenced by the concepts set out in the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate ([1994] 2 S.C.R. 807 (S.C.C.)).

The decision in the Tataryn case held that moral considerations were applicable to a determination as to the amount of a dependant's support award in the context of the British Columbia statute (The Wills Variation Act, R.S.B.C. 1979, c. 435).

Until the Cummings v. Cummings decision, the approach to quantifying dependant's relief claims in Ontario was to essentially ignore the Tataryn moral considerations approach. This was as a result of the fact that the Tataryn decision was an appeal from the British Columbia Court of Appeal and was in respect to section 2(1) of the Wills Variation Act, which included substantially different wording than that of the SLRA. The Wills Variation Act assists dependants where there is a will which does not "in the Court's opinion, make adequate provision for the proper maintenance and support of the testator's wife, husband or children".

It is this language that has allowed the British Columbia Courts to approach the whole question of quantifying dependant's relief on a very different basis and on a moral conviction approach. The language in the Wills Variation Act is broadly drafted and essentially allows the Court to do what it thinks is adequate, just and equitable in the circumstances.

With the Cummings v. Cummings decision essentially embracing the decision of Tataryn, a very different approach must be considered in respect of quantifying dependant's relief claims in Ontario.

We hope this case gives you an idea of the application of the basics legal definitions and terms.

All the best, Suzana and Ian. --------