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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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 to any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

In determining the nature of the evidence required then to prosecute or defend a claim, one must keep in mind that an adverse party cannot rely 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. Section 13 places this additional evidentiary burden on the adverse party understandably because of the estate's difficulty in defending an action without the oral evidence of the testator. In Burnes Estate v. Mellon, the Court of Appeal held that the corroborating evidence must be in addition to and independent of the viva voce evidence of the adverse party but that it could be either direct or circumstantial.

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If an executor/estate trustee is in a position of conflict in respect of a proceeding, an estate trustee during litigation may need to be appointed by the Court. This appointment may be addressed in an Order Giving Directions. If the parties are unable to agree upon the appropriate estate trustee during litigation, that issue can be put to the Court. Security is generally required to be posted unless the estate trustee during litigation is a trust company. If appointed, the estate trustee during litigation will be appointed pending final resolution or settlement of the litigation and/or order of the Court.

An Order Giving Directions often includes a provision that a Certificate of Appointment of Estate Trustee During Litigation be issued to the estate trustee during litigation subject to the filing of the necesssary supporting application. If a Certificate of Appointment of Estate Trustee has already been obtained prior to the Order, the Order should provide for the return of that Certificate to the Registrar.

In the event that an estate trustee during litigation is required, one might consider including a provision in the Order setting out the reasonable remuneration that the estate trustee during litigation may charge. A remuneration agreement may often be negotiated and attached to the Order as a schedule. Increasingly, trust companies are insisting on such agreements. If the estate trustee during litigation is to be entitled to pre-take its compensation (subject to the ultimate approval of the Court upon the termination of the appointment), same can be specified. Parties may also wish to negotiate a provision in the order regarding the authority of the estate trustee during litigation.

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When negotiating an Order Giving Directions, who the appropriate parties to the proceeding are and whether representation is required and/or should be ordered for certain parties is a consideration. Specifically, whether a party has submitted his/her rights in the matter and whether a litigation guardian is required can be factored in.

 Parties Submitting Rights to the Court

Where known, a provision is to be included in an Order Giving Directions confirming those parties that have submitted their rights to the Court.

Rule 75.07 of the Rules of Civil Procedure addresses the submission of rights to the Court by a party. Where a person has submitted their rights to the Court in response to the service of a Statement of Claim or on a motion or application for directions, the person is not a party to the proceeding and is entitled only to service by the plaintiff of written notice of the time and place of the trial and a copy of the judgment disposing of the matter. The person is not entitled to costs in the proceeding and is not liable for costs.

Rule 75.07.1(c) further stipulates that a judgment on consent following settlement shall not be given without (i) the written consent of the person, or (ii) an affidavit of a solicitor of record in the proceeding attesting that a notice of settlement, appended as an exhibit to the affidavit, has been personally served on the person and no rejection of settlement (form 75.12) has been filed with the Court within 10 days after service of the notice.

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During Hull on Estates Podcast #23, we discussed the tips for and the pitfalls of bringing motions for summary judgement in estate litigation.

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During Hull on Estate and Succession Planning Podcast #23, we introduced the Family Conference Solution.

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Orders Giving Directions in Estate Litigation are the focus of this week's blogs. While estate litigation is similar in many respects to civil litigation, the approach to litigating estate claims can be quite different given the estate litigator's ability to, among other things, seek and obtain an Order Giving Directions to manage the litigation.

Typically, in civil litigation, if the claim proceeds by way of statement of claim, the pleadings stage will be followed by documentary (affidavit of documents) and oral discovery, mediation and/or a pre-trial conference and thereafter, a trial. One's approach to estate litigation may be different, however, based on counsel's opportunity, at first instance, to, or attempt to, design and craft the manner in which the litigation may proceed and/or to seek the assistance of the Court with obtaining interim and/or ancillary procedural relief. How one chooses to manage a claim, which will lead to one's choice of proposed provisions for the Order Giving Directions, will in turn depend on, among other things, the nature of the issues, who the parties are and/or ought to be, the evidence one thinks one will need to prove and/or defend such issues, how one can best marshal such evidence and utilize that evidence towards the pursuit of a settlement and/or the prosecution of the claim; all of the above being considered in the context of the value of the estate and the costs that will accompany the prosecution and/or defence of the claim.

Negotiating an Order Giving Directions Rule 75 of the Rules of Civil Procedure deals with contentious estate proceedings. Under Rule 75.06(1), any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court. An application for directions or motion for directions shall be served on all persons appearing to have a financial interest in the estate or as the Court directs, at least 10 days before the hearing of the application or motion. Parties can, however, seek such an application or motion on short notice if permitted by the Court.

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Continuing with his analysis of the niche culture, Anderson, in Chapter 11 of The Long Tail, uses a startling illustration of the effect of the niche culture on what we typically call mainstream media.

He notes (at page 185) that the traditional news media delivery system has been dramatically transformed since the mid 1980s and that the circulation of typical newspapers is down more than 1/3 as a result of the inroads of the Internet. Anderson notes that, in the past, the power of newspapers came from their command over their tools of production. Now anyone with a laptop and an Internet connection can have access to the power of the press.

Initially, newspapers and other traditional media forums tried to take advantage of this change toward digital technology; however, the growth of niche interests and people creating their own homepages and blogpages provided for a distinctly different approach to the delivery of news. Anderson cites (at page 185-186) Richard Posner, an eminent Judge and legal scholar, who talks about the fact that a blogger can target a much narrower segment of the reading public than a newspaper or television news channel. In effect, the blogs pick off mainstream media's plushest customers, one by one, as they can serve the niche where their old media precursors can only discuss the issue in terms of the masses.

Have a great weekend, Suzana and Ian.

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Chapter 11 of Anderson's The Long Tail became particularly interesting to us as we worked through his new economic theory. In many respects, we think of our firm, Hull and Hull LLP, as truly a niche in the legal world. While Anderson spends much time in his book dealing with the concept of the niche market in the digital world, in Chapter 11, he further clarifies his thinking with respect to the life and times and future of the niche market culture.

At page 80, Anderson notes that the concept of The Long Tail is nothing more than the manifestation of infinite choice. Abundant, cheap distribution means abundant, cheap and unlimited variety - and that means the audience tends to distribute as widely as the choice. Infinite choice equals ultimate fragmentation as the masses scatter to search for the niche products and media that cater to their special interests. At page 184, Anderson cites Virginia Postrel, who observes that the variety boom is nothing more than a reflection of the diversity inherent in any population distribution:

Every aspect of human identity, from size, shape, and colour to sexual proclivities and intellectual gifts, comes in a wide range. Most of us cluster somewhere in the middle of most statistical distributions. But there are lots of bell curves, and pretty much everyone is on a tail of at least one of them. We may collect strange memorabilia or read esoteric books, hold unusual religious beliefs or wear odd-sized shoes, suffer rare diseases or enjoy obscure movies.

As Anderson notes (at page 184) this diversity has always existed, but it is only now that we can act on it and expand and explore our special interests as a result of the rising niche culture.

Thanks, Suzana and Ian.

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In our last blog, we talked about abundance and the concept of the "paradise of choice" that Anderson has developed in his book, The Long Tail. In this blog, we would like to look at the possibility of having too much choice. As Anderson notes at page 170 of The Long Tail, the overwhelming reality of our on-line age is that everything can be available.

He goes on to ask, "Can we handle this much choice?" This question becomes increasingly relevant given the abundance of information on the Internet, and our conventional view that the more choice, the better. However, Anderson delves deeper and points us to an influential book published in 2002 by Barry Schwartz - The Paradox of Choice, where the author indicates that too much choice is not just confusing, but downright oppressive. At page 171, Anderson notes how Schwartz describes the conclusion of The Paradox of Choice:

As the number of choices keeps growing, negative aspects of having a multitude of options begin to appear. As the number of choices grows further, the negatives escalate until we become overloaded. At this point, choice no longer liberates, but debilitates. It must even be said to tyrannize.

Anderson provides us with daunting statistics such as the fact that Amazon offers more than 1,200 different kinds of jams through its small speciality food merchants. Given these potentially overpowering statistics, we are of course comforted by the fact that search engines such as Google have the ability to take what could be the infinite chaos of the Web and bring it down to a manageable level.

As Anderson notes (at page 176), digital distribution has two effects on the traditional models of sales and distribution: it widens the field of possible customers and shortens the search time. Over time, it should increase sales and contribute to the growth of the overall market.

All the best, Suzana and Ian.

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In recent blogs, we have talked about Anderson's views on the abundance of information in the new economy and, in Chapter 10 of The Long Tail, Anderson describes this "paradise of choice".

He starts the chapter by reminding us of a Saturday Night Live skit in 1978 featuring a store in a trendy mall called "The Scotch Boutique" which sold nothing but scotch tape. Its proprietors were puzzled over the absence of customers as they offered so many kinds of tape that surely one would appeal to nearly everyone, and yet there was no traffic. The humour came from the fact that, in 1978, the idea of a store simply for scotch tape seemed absurd. Anderson goes on to note that in 2004 a store called "Rice to Riches" opened in Manhattan, which sells 20 flavours of rice pudding and nothing else.

Despite the emergence of niche stores like "Rice to Riches", Anderson tells us (at page 168) that we are in the midst of the biggest explosion of variety in history. He points to the fact that there are approximately 19,000 variations of Starbucks coffee and 26,893 new food and household products were introduced in 2003 (including 115 deodorants). Anderson goes on to investigate (at page 169) why there has been such an explosion of variety. In an effort to answer this question, he points to globalization and its effect on the efficiency of supply and demand. Demographics also play an important role and he cites a BusinessWeek article recently describing this phenomenon:

In the 1950s and 1960s, the country was far more uniform in terms of not only ethnicity - the Hispanic influx had not yet begun - but also of aspiration. The governing idea was not merely to keep up with the Joneses, but to be the Joneses - to own the same model of car or dishwasher or lawnmower. As levels of affluence rose markedly in the 1970s and 1980s, status was refined. We've had a change from "I want to be normal" to "I want to be special". As companies competed to indulge this yearning, they began to elaborate mass production into mass customization.

Finally, Anderson notes (at page 169) that iTunes offers nearly 40 times the selection of Walmart. Clearly, the paradise of choice can be a bit overwhelming.

All the best, Suzana and Ian.

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In Episode #22 of Hull on Estates, we discussed summary judgment in general and in the context of estate litigation.

More specifically, we looked at the cases of:

•  Straus v. Bainbridge (1999), 38 E.T.R. (2d) 110 (Ont. Gen. Div.); affirmed 38 E.T.R. (2d) 119 (Ont. C.A.);
• Ostreich v. Brunnhuber (2001), 38 E.T.R. (2d) 82;
• Knox v. Trudeau (2001), 38 E.T.R. (2d) 67 and;
• Ettorre Estate, Re (2004), 11 E.T.R. (3d) 208 (Ont. S.C.J.).

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During Hull on Estate and Succession Planning Podcast #22, we continued our discussion on the stages of the legal process and its costs. The last three of the six stages were noted as follows:

4) Pre-trial conference;

5) Trial;

6) Appeal.

We also discussed the importance of mediation to legal and estate matters.

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In our ongoing review of the phenomenally successful book, The Long Tail, we both thought long and hard about Anderson's theory in respect of why we personally have decided to blog and podcast. As we see it, consistent with our general philosophy that providing quality content is the best way to demonstrate our own professional abilities, The Long Tail considers our approach to business development with Anderson providing some interesting insight on the topic.

At page 73 of The Long Tail, Anderson asks "Why do they do it?" Why does anyone create something of value without a business plan or even the prospect of a pay cheque? This question is a key to understanding The Long Tail, partly because so much of what populates the curve does not start with commercial aim. In fact, as we have thought for some time, the traditional business model needs to be reworked and we personally avoid the one-hit wonder approach to our business plan. Anderson goes on to explain this idea at page 74 of his book, when he cites Tim Wu, a Columbia law professor, who calls this phenomenon (at page 74 of his book) "exposure culture", pointing to blogging as an example:

The exposure culture reflects the philosophy of the Web, in which getting noticed is everything. Web authors link to each other, quote liberally, and sometimes annotate entire articles. E-mailing links to favourite articles and jokes has become as much a part of American work culture as the water cooler. The big sin in exposure culture is not copying, but instead failure to properly attribute authorship. At the centre of this exposure culture is the almighty search engine. If your site is easy to find on Google, you don't sue - you celebrate.

We have provided at www.hullandhull.com a variety of articles that our firm has written over the years, plus a tremendous amount of resources in respect of articles that have been written by others. Futhermore, Ian and I believe that our new webpage (which will be arriving shortly) and our blogposts and podcasts only further demonstrate our commitment to always providing good content.

All the best, Suzana and Ian.

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The "consumer economy" is a product-controlled system in which consumers are nothing more than energy sources that metabolize "content" into cash. This is the absolutely corrupted result of the absolute power held by producers over consumers since producerse won the Industrial Revolution. Apple is giving consumers tools that make them producers. The practice radically transforms both the marketplace and the economy that thrives on it (page 64).

As Anderson notes, today millions of ordinary people have the necessary tools, such as the iPod, and the role models to become amateur producers. The Wikipedia phenomenon is a fascinating example of how amateurs are gaining credibility in "The Long Tail" consumer society.

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At page 52 of his book, The Long Tail, Chris Anderson sums up his theory as follows: our culture and economy are increasingly shifting away from a focus on a relatively small number of hits (mainstream products and markets) which constitute the head of the demand curve, and moving interest toward a huge number of niches in the tail.

Anderson indicates that there are six themes of The Long Tail:

1. There are far more niche goods than hits.

2. The costs of reaching those niches is now falling dramatically.

3. Search techniques and the range of tools for ranking effectively filter the mass of products and enable customers to find what they desire, driving demand down the tail.

4. The demand curve eventually flattens. There are still hits and niches, but in less extremes.

5. There are so many niche products that, collectively, they can comprise a market rivalling the hits.

6. The natural shape of demand is revealed and it is far less hit-driven than we have been led to believe. Instead, it is as diverse as the population itself. In an effort to better understand this recent trend, Anderson highlights a speech given by News Corp. Chairman Rupert Murdoch in 2005. Murdoch proclaimed:

Young people don't want to rely on a Godlike figure from above to tell them what's important...They want control over their media, instead of being controlled by it.

Murdoch's speech led Anderson to note that this positive change in our culture can be explained by the phenomenen of the Long Tail, where we can all be creators and producers of our own niche products. More on this in tommorrow's blog.

Thanks, Ian and Suzana.

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Following yesterday's discussion regarding the definition of "The Long Tail", we were interested in Anderson's analysis of this term by use of a creative analogy: imagine today's culture as if it were an ocean and the only features which can rise above the surface of the water are islands of blockbuster hits. We must thus imagine the water line as the economic threshold or the amount of sales necessary to satisfy the distribution channels. The islands represent the products that are popular enough to rise above that line, and thus profitable enough to be offered through distribution channels with scarce capacity, which is to say the shelf space demands dictated by the most powerful retailers.

However, these islands are, of course, just the tips of a vast undersea mountain. With the new shape of cultural commerce and the Internet's increasingly extraordinary economic efficiencies, niche products, previously submerged under the water, can now be recognized and found through the use of powerful search engines. This abundance of niche products which exist beneath the surface, therefore, has the capability to become a larger economy than the small one which has risen above the water. We will continue our discussion of Chris Anderson's The Long Tail in tomorrow's blog.

Thanks, Ian and Suzana.

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During Hull on Estates Episode #21, we discussed the conditions which can lead to a Will challenge and the subsequent steps of the process of Estate litigation.

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In yesterday's blog, we discussed Chris Anderson's fascinating book, The Long Tail. In Chapter One, Anderson provides us with a glimpse of his views on hit-driven economics. Data indicates that most of us want more than hits. Everyone's taste departs from the mainstream at some point and the greater our access to these vast alternatives, the more we are drawn to them.

Unfortunately, until recently, these alternatives were relegated to the fringes by overpowering marketing vehicles built by the industries which needed them to assure the success of their blockbuster hits. However, today's system of online distribution and retail makes these alternative niche products accessible and easily reached.

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During Hull on Estate and Succession Planning Podcast #21, we discussed 3 of the 6 stages of the legal process surrounding Estate Litigation. These stages are as follows:

1) Order organizing the Litigation;

2) Collecting and Disclosing Evidence and;

3) Discoveries.

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This summer, we had the pleasure of reading several interesting books; the one that had the most profound effect on us, however, was Chris Anderson's book entitled The Long Tail.

We note from the outset of the book that Anderson's theory was essentially developed out of a 2004 conversation that he had with a friend of his, Robbie Vann-Adibe, the CEO of ECAST, a digital jukebox company. At page 7, Anderson describes the similarity of a digital jukebox and a regular jukebox as both are big enclosures with speakers and blinking lights, often found in bars. However there is one main difference between the two. Rather than a hundred CDs, a digital jukebox has a broadband connection to the Internet and patrons can therefore choose from thousands of tracks that are then downloaded and stored on a local hard drive.

During this conversation between Anderson and Vann-Adibe, Anderson asked Vann-Adibe what percentage of the 10,000 albums available in the jukeboxes sold at least one track per quarter. To Anderson's astonishment, the answer was 98%. Anderson soon found out the songs didn't sell in big numbers, but nearly all of them sold something. At page 8, Vann-Adibe explained to Anderson that in a world of minimal packaging costs and instant access to almost all content in a digital format, consumers exhibit consistent behaviour: they look at almost everything.

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A Separation Agreement may purport to release the spouses from all claims including any claims to a share in company pension plans, RRSPs, etc. As such, A Separation Agreement can be an "instrument" as that term is referenced in s. 51(1) of the Act although the term itself is not described in the statute (see Burgess v. Burgess Estate [2000] O.J. No. 4846 (Ont. C.A.).

In Burgess v. Burgess Estate, the deceased had designated his first wife as beneficiary of his deferred pension sharing plan (DPSP), which he held with his employer, during the course of his marriage. He subsequently entered into a Separation Agreement in which he reduced her entitlement to one half of the DPSP. He subsequently remarried and made a new Will leaving his entire estate to his second wife and the children of his first marriage.

On an application before Madam Justice Haley, the first wife sought a declaration that she was entitled to the whole of the DPSP. The first wife essentially made the same argument which was accepted by the courts in the line of cases in which Wills which were inconsistent with Separation Agreements were found to prevail: in her submission, she did not, by the Separation Agreement, "waive the right to claim if the deceased spouse chose not to alter his or her beneficiary designation so as to eliminate her as a beneficiary." Madam Justice Haley accepted the reasoning: the contract between the employer and its employee was separate from the marriage. Not being a party to the Separation Agreement, the employer, with whom the deceased filed his beneficiary designation, could not be said to have been bound by the Agreement. If the deceased truly intended to eliminate or reduce the entitlement of his spouse, he would have changed the beneficiary designation at the source.

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A Separation Agreement or a Marriage Contract between married spouses may contract out of the rights afforded to married spouses by Statute.

If married spouses separate within the meaning of the Family Law Act, their relationship is typically governed by the provisions of a Separaton Agreement. A Separation Agreement is a contract and is governed by the common law as it relates to contracts.

As a general proposition, the intention of a Separation Agreement is generally assumed to be to ensure that the parties, as between themselves, contract to ensure that neither benefits from the other's property after the termination of the relationship.

If the obligations contained in a Marriage Contract are incorporated into a Will, the obligations will continue notwithstanding the fact that the contract has itself been found to be invalid.

Unless the provisions in a Marriage Contract for the surviving spouse are clear and straightforward, there is a risk that the provisions in the Will may amplify the benefit flowing to the surviving spouse.

As a general proposition, spouses that have entered into a Separation Agreement do not typically intend their spouse to thereafter benefit from their estate. However, unless the Separation Agreement is very carefully worded, the Wills made by the parties to the Separation Agreement, even if those Wills predate the Separation Agreement and appear on their face to be contrary to the intention of the Separation Agreement, will be found to prevail.

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If a Will is made, or if there is an intestacy, a husband or wife receives the benefit provided under the deceased spouse's Will or the intestacy provisions of the Successioin Law Reform Act, respectively, or is entitled to elect to instead receive his or her benefit under the Family Law Act.

Such election will be made if the husband or wife will receive a more favourable benefit by receiving one half of the difference between the net family properties of the deceased spouse and the survivor respectively.

Note that the right to elect is restricted to married spouses.

If an election under the Family Law Act will not benefit the surviving spouse, the option remains for the surviving spouse to claim against the estate under the provisions of Part V of the Succession Law Reform Act. The position asserted by the surviving spouse on such a claim is that the deceased spouse, by the provisions of his or her Will or on a distribution on an intestacy, did not satisfactorily provide for the needs of his or her spouse.

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Spousal relationships (and their breakdown) and their interaction with estate litigation are the focus of this week's blogs. In the practice of estate litigation, there is an immense body of applicable case law and statutory authority.

For the purpose of these blogs, the term "married spouse" is used to consider those entitlements which are only granted to those spouses who fall within the definition of marriage in Ontario. The term "unmarried spouse" is used to consider the entitlements of spouses who are not married but who are conferred benefits under the provisions of certain statutes.

(i) Rights of a married spouse on an intestacy

The entitlement of a married spouse on an intestacy is statutory: Succession Law Reform Act, Part II. A surviving husband or wife, on an intestacy, receives the entire estate of his spouse if there are no children. If there are children, the surviving husband or wife still receives the first $200,000.00 of the estate and either 1/2 of the remainder if there is one child or 1/3 of the remainder if there are two of more children of the marriage.

(ii) Rights of an unmarried spouse on an intestacy A surviving unmarried spouse, on an intestacy, receives no entitlement. A spouse is defined for the purposes of Part II of the Succession Law Reform Act as either a man or a woman who is married.

Although there are some cases in other provinces which suggest that this statutory provision offends the equality provisions of the Charter, the only available statutory remedy for an unmarried spouse on an intestacy in Ontario is to bring an application for support under the provisions of Part V of the Succession Law Reform Act.

Tomorrow, we will consider the entitlements of married and unmarried spouses under a Will and their entitlements when the benefit under the Will is less than adequate.

Have a great day, David. --------

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During Hull on Estate and Succession Planning Podcast #20, we wrapped up our analysis of the 10 causes of Estate Litigation and discussed Breach of Contract and Constructive Trust Claims.

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During Hull on Estates Episode 20, we discussed costs awards and estate litigation. We also analyzed:

•  the case of Ali v. Fruci, [2006] O.J. No. 1093 (S.C.J.); [2006] O.J. No. 1425 (S.C.J.); and
•  the case of Andersen v. St. Jude Medical, Inc. [2006] O.J. No. 508 (Div. Ct.).

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We have made note this week of the fact that a beneficiary designation is subject to considerably less legal formality than a Will. The fact that many Canadians do not have Wills often means that the designation of a beneficiary is the primary means by which an individual engages in estate planning. This is particularly true of those in their thirties or forties whose largest assets will often be RRSPs or life insurance policies. We have noted that such estate planning has the benefit of clearly directing assets to the intended beneficiary without the need for obtaining probate of a Will.

Certainly, non-legal professionals such as financial advisors will frequently highlight the benefits to their clients of structuring their affairs in such a way as to minimize estate administration tax. Lawyers, as well, will recommend such benefits, mindful of the pitfalls associated when a beneficiary does not act as intended. For instance, where an individual designates a beneficiary of an asset, not for that person's personal benefit but rather, to distribute in accordance with a Will or some other written or verbal instructions (ie. a secret trust), the issue of trust becomes paramount.

What if the beneficiary does not distribute the asset as the deceased intended but keeps it for herself? For the litigation lawyer, it may be a serious challenge to prove a breach of trust on behalf of disappointed beneficiaries. The designated beneficiary can simply take the position that she has received all right, title and interest in the asset. If the designated beneficiary is herself named executor of the deceased's estate, there may well be some legitimate questions as to whether she was expected to distribute the asset in accordance with the Will. The designation, if contained in the Will, may ideally clarify whether the asset is to be subject to the terms of the Will.

Have a great weekend and we'll be back on Tuesday, David. --------

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Earlier this week we discussed the interaction between Will challenges and challenges to beneficiary designations. Specifically, an invalid Will may nonetheless contain a beneficiary designation which will be recognized by the Court as valid. An example would be a Will witnessed by only one person and therefore invalid in Ontario. Since there are no formal requirements required for the making of a beneficiary designation, a beneficiary designation contained in such Will may still be valid.

But what is the test for capacity to make a beneficiary designation? It would appear that the test is similar to the test for testamentary capacity to make a Will. The onus is on the proponent of the new designation to show that the maker of the designation had the necessary mental capacity to understand what he was signing.

What if a person is incapable? Can their attorney under a power of attorney for property make a beneficiary designation on their behalf?

It seems settled that an attorney under a Continuing Power of Attorney for Property cannot appoint a beneficiary under a life insurance policy or a registered plan as these acts are in the nature of a testamentary disposition.

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In our ongoing discussion of beneficiary designations, today's focus will be on the hallmarks of a valid revocation by Will.

As we discussed yesterday, section 52 of the Succession Law Reform Act provides an overview of the legal requirements of the revocation of a beneficiary designation.

One of the requirements of the statute was that a revocation of a beneficiary designation in a Will must relate "expressly to the designation, either generally or specifically."

So, for instance, a holograph Will (a valid unwitnessed Will when made entirely in the handwriting of the testator and signed by him) that lists all of the testator's assets and references those assets that are RRSPs as such, and proceeds to thereafter list the beneficiaries of the estate to share in the assets does NOT constitute a revocation of a beneficiary designation. (Laczova Estate v. House [2001] O.J. No.4992 (Ont. C.A)).

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s. 52(1) A revocation in a will is effective to revoke a designation made by instrument only if the revocation relates expressly to the designation, either generally or specifically.

(2) Despite section 15*, a later designation revokes an earlier designation to the extent of any inconsistency.

(3) Revocation of a will revokes a designation in the will.

(4) A designation or revocation contained in an instrument purporting to be a will is not invalid by reason only of the fact that the instrument is invalid as a will.

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During Hull on Estate and Succession Planning Podcast #19, we reviewed the frequent causes of Estate litigation, discussed Dependent Relief Claims and looked more intensely at Family Law Entitlements.

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During Hull on Estates Episode 19, we reviewed three themes which have an impact on the decision of costs in the estate:

1) An appropriate level of investigation

2) Protection of sanctity of the process

3) Testator conduct Capacity litigation and the passing of accounts were also reviewed and the case of Ali v. Fruci ([2006] O.J. No. 1093) was introduced.