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 yesterday’s blog, I wrote about the recent case of Conceicao Farms Inc. v. Zeneca Corp., [2007] 83, O.R. (3d) 792, www.canlii.org, decided by the Ontario Court of Appeal. As I noted, this case is a good reminder of the care and focus required during the discovery process when seeking disclosure of findings, opinions and conclusions of another party’s expert.

The Ontario Reports dated July 27, 2007 indicate that an application for leave to appeal to the Supreme Court of Canada (“S.C.C.”), www.scc-csc.gc.ca, for this case was filed on November 17, 2006 and submitted to that Court February 12, 2007. It appears that the S.C.C.’s decision granting or dismissing this Application has yet to be released.

In the normal course a respondent is given the opportunity to respond before the application is submitted to the Court.

Leave may be granted when the S.C.C. finds that the case raises an issue of public importance and ought to be decided by the S.C.C.  The case must then raise an issue that goes beyond the immediate interest of the parties to the case. 

Applications for leave are usually decided by a panel of three judges of the Court.

According to the S.C.C. website, as many as 600 applications for leave are filed each year with the Court granting leave to approximately 70 applications per year, touching upon a variety of legal issues.

As part of the application seeking leave to appeal, a party must, among other things, complete the detailed requirements for such applications further to Rule 25 of the Rules of the Supreme Court of Canada. Aside from a notice of application for leave to appeal and other documents, a memorandum of argument must be filed.  

It will be interesting to see if the appellants in the Conseicao Farms Inc. matter will be able to persuade the panel of S.C.C. judges that the case raises an issue of public importance beyond the immediate interest of the parties.

Thanks for reading.

Craig.

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Listen to "Litigation Involving Minors"

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In Episode 70 of Hull on Estates, Paul and Sean discuss Court approval of settlements affecting the interests of minors. They refer to Rule 7.02 and 7.08 fo Ontario's Rules of Civil Procedure as well as the case of Marcoccia (Litigation Guardian of) v. Gill, 2007 CarswellOnt 15 (Ont.S.C.J.).

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Listen to "Hall v McLaughlin"
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This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the case of Hall v McLaughlin. This case explores the issue of whether or not a mirror/mutual will written early in life is binding. It illustrates the importance of making your intentions clear to your spouse.

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The case of Conceicao Farms Inc. v. Zeneca Corp., recently decided by the Court of Appeal for Ontario, is a good reminder of the care and focus required during the discovery process when seeking disclosure of findings, opinions and conclusions of another party’s expert. 

In this case, the respondents had provided an expert report 8 months prior to trial. The expert was then called as a witness at trial. The appellants’ action was dismissed with costs at trial with the trial judge relying, in part, on the respondents’ expert evidence. 

When the respondents provided material to the appellants in support of their costs claim, the existence of a memorandum came to light. The memorandum, prepared several years before the trial, contained foundational information for the opinion of the respondents’ expert. The appellants then moved before the trial judge to request production of that memorandum. The trial judge dismissed the motion. 

The appellants appealed the trial judge’s decision. They relied on Rule 31.06(3) of the Rules of Civil Procedure hoping to tender the memorandum as fresh evidence on an appeal in order to argue that a decision based in part on the expert could not stand since the memorandum was wrongly withheld. 

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Unfortunately, the following quote applies to many of the cases that we deal with on a daily basis:

“To say that brother and sister do not get along in this case is an understatement. There is plenty of mistrust, suspicion and bitterness to go around. The applicant blames her brother for high-handed and unilateral conduct. He claims he has acted improperly. On the other hand, [brother] blames his sister for being non-communicative and hard to get along with. He was compelled to take the steps that he did because his sister which not deal with him.”

The quote is from Hill v. McLoughlin, 2007 CanLII 1334 (Ont. S.C.). There, brother and sister were co-estate trustees and residual beneficiaries of their mother’s estate. As a result of the above-noted mistrust, sister brought an application to have brother removed as an estate trustee.

The court found that while there was friction and hostility between brother and sister which hindered the administration of the estate, it was not satisfied that brother committed a breach of trust as alleged, or was in a conflict of interest.

The court stated that where the deceased has expressly appointed trustees, a court should be loath to interfere with the testator’s expressed intention except on the clearest of evidence that there was no other course to follow. The expressed wishes of the testator should be respected and not interfered with lightly. It is only where a court determines that the welfare of the beneficiaries requires removal and replacement of trustees that the court should undertake such action. It is not any mistake or neglect of duty on the part of the trustees which would lead to their removal. It must be shown that the non-removal of the trustee will likely prevent the trust from being properly executed.

While the court did not order removal of the brother, it did not condone his actions. The court required that the brother undertake certain steps, such as provide specific information to the sister.

On the issue of costs, judge ordered that each party should bear their own costs.

It is often hard for siblings or others to get along and cooperate in the administration of an estate. Further, actions taken by trustees, out of spite or otherwise, can serve to exacerbate the mistrust that already exists. Knowing that the courts will not automatically step in and remove an estate trustee in the circumstances should encourage the parties to an estate to act reasonably and simply get the job done.

Thank you.

Paul Trudelle

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The world wide web offers a wealth of information: some useful; some not so. Recently, I came across www.stealanestate.com. The website puffs “Get Rich! On Other People’s Money”, “Displace Rightful Heirs Legally!” and “Never Have to Work Again!”

The web page offers a three step program:

Step One: Assess Opportunities & Establish Yourself
Step Two: Discredit and Displace the Heirs
Step Three: Savour Your Triumph

Tips incude:

• Identify elderly affluent people who are alone;
• Use alcohol;
• Create reasons to see them often;
• Always take their side and fault anyone who disagrees with them;
• Get into a position of trust and authority;
• Act like the perfect son or daughter;
• Keep the rightful heirs ignorant of your relationship;
• Sever all communications between the victim and their heirs;
• Create conflict – lie to the victim about the heirs and their dishonesty and misdeeds.

The site contains many more “tips”.

At first blush, the site is shocking and disturbing. However, deeper into the site there is an explanation. The site claims be operated by individuals “currently in litigation fighting years of undue influence for our mother’s estate”. The tactics and tips set out in the site were apparently used against them. The page is “meant to shock you into action and attention.”

The site should be read as a cautionary tale: a shopping list of things to look out for: both for ourselves and for our loved ones, rather than as a “how-to” list on elder abuse.

Thank you.

Paul Trudelle

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In Thursday’s Globe and Mail, Margaret Wente wrote about “Geezers in Paradise”, and observed that tomorrow’s seniors will be able to enjoy “the most delightful old age of any generation the world has ever known”. Seniors are the fastest growing group in Canada, and by 2017, seniors will outnumber those under 15.

Ms. Wente sees a future where “mature lifestyle residences” replace schools, nannies are imported to care for your mom rather than for your kids, and the most popular diapers will be size XXL. Industries will sprout up to service this aging population, medicines will improve, and the political clout of this older group will ensure their comfort and entitlements.

This optimistic future is contrasted by reports earlier last week that one in three Canadians worry about outliving their savings (Toronto Star, July 16, 2007). The report found that many older Canadians did not foresee such a rosy retirement. 33% of respondents over 60 worked either part-time or full-time, and 19% indicated that their financial situation was worse or much worse than 5 years ago.

The vision of the baby boomer generation, on the cusp of becoming senior citizens, being the most affluent group ever is not universal. “There’s going to be a group of baby boomers for whom all of this image of affluence and consumption isn’t reality,” said professor Doug Owram of the University of British Columbia.

Rich or poor, the articles both highlight the importance of planning for our later years.

Thank you.

Paul Trudelle

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Mr. Bernard Bayer has won the right to receive a salary from his former employer until March 1, 2012. Unfortunately, Bernard died on April 23, 2005.

In this most unusual case, Bernard's estate will be entitled to receive payment equal to Bernard’s salary until 2012, notwithstanding Bernard's death.

The case turns on the peculiar wording of Bernard's employment agreement with his employer, the Blue Button Club. Pursuant to this agreement, which was entered into on March 1, 2002, Bernard was employed as the Executive Manager of the Club. The agreement had a 10 year term. The agreement described Bernard's duties at the Club. It provided that he was to be paid at least $60,000 per year.

An unusual provision of the employment agreement provided that the Club was to maintain insurance on the life of Bernard, naming the Club as beneficiary, so that the Club could comply with the termination provisions of the agreement. The termination provisions provided that the employment agreement could be terminated in the event that Bernard failed repeatedly and demonstrably to perform his duties, and failed to remedy this problem after receiving reasonable notice; for just cause; or upon his death, in which case, the Club was to collect the insurance proceeds and pay these to Bernard's estate.  Apparently, the Club did not take out such a policy of insurance.

In resisting the claim by Bernard’s estate, the Club argued that, prior to his death, Bernard failed to fill his duties. The court rejected this submission, holding that the Club did not provide the required written warning to Bernard.

The Club also submitted that the agreement was not enforceable, and that neither of the parties expected the agreement to be enforceable. The court easily rejected this submission.

As the agreement clearly contemplated Bernard’s death, it was not frustrated by his death.

The court found that Bernard's estate was entitled to the payments due until the end of the agreement. These damages totalled $410,000.

In this case, the employment agreement was drafted by or on behalf of the Club. The court held the Club to its agreement, notwithstanding its unusual provisions, or the fact that it produced, at least at first blush, an unusual result.

Thank you,
Paul Trudelle

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Listen to "Partition in Sale Proceedings"

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In this episode of Hull on Estates, Natalia and David have a discussion about partition in sales proceedings, and use the case of Suttick and Schwenger, which deals with a family cottage.

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Listen to "Real Case Studies"

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This week on Hull on Estate and Succession Planning, Ian and Suzana talk about some of the real-life case studies that they encounter every day. They  go through a case that tore a family apart: Rose v Rose, in a case over the family cottage.

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From 1993 to 1996, Daniel Assh, a Pensions Advocate with the Bureau of Pensions Advocates, Veterans Affairs Canada assisted Maria Orn, a veteran and the widow of a veteran in obtaining her pension benefits.

In 2001, Maria prepared her will. In it, she left specific legacies totalling more than $100,000, and divided the residue of her estate amongst various named persons and a charity. Three weeks later, she died.

One of the specific legacies was a $5,000 bequest to Daniel.

Daniel told his superiors about the bequest, and that he intended to accept it as it could not give rise to a conflict of interest. They told him to "hold off" on accepting the bequest until the matter was cleared through the “appropriate department channels”.
Daniel argued that because he did not know of the bequest in advance, and because there could not be the expectation of further services, and no possibility that Daniel could provide special assistance to Maria or her family, there was no conflict. Daniel submitted that he had stopped providing services to Maria long before her death. It was agreed that Daniel had in no way attempted to influence Maria into making the gift.

Did he get to keep the bequest?

No. Veterans Affairs determined that accepting the gift would be in contravention of the federal Conflict of Interest Code.

Daniel grieved the decision through two levels of the internal grievance process, and then applied for judicial review when the decision was upheld at both levels. Judicial review was allowed, and Daniel was allowed to keep the bequest. However, the decision was appealed to the Federal Court of Appeal (“FCA”).

The FCA held that the bequest could give rise to a perception of conflict. The question was whether a reasonable person would think that there was a realistic possibility that acceptance of the legacy could influence the employee’s future performance of official duties. The FCA noted that a pensions advocate is in a position of confidence and influence. The clientele are usually elderly and vulnerable, and often in difficult circumstances, such as the death of a spouse.
The FCA stated that while Daniel could not accept the gift, “the acknowledgment of her gratitude to him for assisting her is effectively communicated to him, and to others.”

Thank you for reading.
Paul Trudelle

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Many litigants are disappointed to learn that costs are no longer automatically paid out of an estate. In fact, it is now widely accepted that estate litigation can attract the usual costs consequence. As such, costs are an issue that should be considered by a party before embarking upon estate litigation. Ukrainian Catholic Episcopal Corp. of Easter Canada v. Pidwerbecki, a recent decision of the Ontario Superior Court of Justice, is instructive in this regard.

The respondents were success at trial and sought their costs. The applicant, the Ukrainian Catholic Episcopal Corp. of Easter Canada (the “Church”), argued that no costs should be awarded and that the costs requested were, in any event, excessive.

The court recognized that in estate matters, issues frequently arose upon which “reasonable persons” could “reasonably disagree”. Ambiguity in a testamentary document was cited as one such example. The court held that where there were reasonable grounds for an application, costs should generally be paid by the estate.

However, in the case at hand, there was no dispute arising out of any mistake or lack of clarity or default of the testator. According to the court, the lack of evidence supporting the Church’s position ought to have been apparent from the beginning and certainly at the end of discoveries (a good reminder to counsel to write to clients at the end of discoveries to address the merits of the case). Given the allegations of misconduct, coupled with the lack of evidence, the court held that costs, on a partial indemnity scale, should follow the cause (loser pays the winner).

The fact that the Church was a not-for-profit organization carried no weight with the court. Moreover, even though there was no adversity of interest between the respondents, the court was satisfied, despite the arguments of the Church, that it was reasonable for the parties to be separately represented. The respondents were awarded their separate costs.

Thanks for reading and have a good weekend.

Justin

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The census-takers tell us that our population is rapidly ageing (the need for sound estate planning seems obvious). The challenges that Canadian society faces are likely profound and there is much gnashing of teeth and wringing of hands about the future. There is a certain irony to the fact that as the information age accelerates, driven by our pervasive youth culture, our population ages.

In the above context, it is worth considering what I believe to be the motivating factor or thinking behind the Supreme Court of Canada’s (“S.C.C.”) decisions in Pecore v. Pecore and Madsen Estate v. Saylor. The two recently released companion cases were eagerly anticipated by the estate bar and addressed the transfer of property by an ageing parent into joint ownership with one of their children.

The S.C.C. made it clear that the “presumption of resulting trust” is the general rule that applies to gratuitous transfers of property into joint ownership. The onus is therefore placed on the person who received the gift to demonstrate that a gift was, in fact, intended. The court also held that the “presumption of advancement” applied to transfers of property by parents into joint ownership with their minor children. The burden of rebutting such a presumption falls to the party challenging the transfer rather than the gift-receiver.

The transfer of property by an ageing parent, particularly funds into joint bank accounts, is becoming widespread. In the context of an ageing population, Rothstein J., writing for the majority of the court, specifically addressed why the presumption of resulting trust arose rather than a presumption of a gift.

As Rothstein J. noted in his decision: “… it is common nowadays for ageing parents to transfer their assets into joint accounts with their adult children in order to have that child assist them in managing their financial affairs. There should therefore be a rebuttable presumption that the adult child is holding the property in trust for the ageing parent to facilitate the free and efficient management of their parent’s affairs”. In taking note of this stepped-up practice, the S.C.C. recognized the changing dynamics of Canada’s population and framed its decision accordingly.

Thanks for reading!

Justin

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Most lawyers have come across the vexatious litigant, the complainant who has an endless array of grievances and regards the courts as a convenient forum to pursue frivolous claims. The Oxford Dictionary defines vexatious as "... not having sufficient grounds for action and seeking only to annoy the defendant". Endless proceedings and countless motions are brought over a number of years. Regrettably, the vexatious litigant knows enough about the rules of court, often through trial and error, to be a menace and not easily put off. As no one judge initially hears all proceedings and accompanying motions, a great deal of sympathy is often extended to the vexatious plaintiff together with ample leeway to pursue his or her claims.

However, there is hope. Section 140 of the Courts of Justice Act states that where a judge of the Ontario Superior Court of Justice is satisfied that a person has persistently and without reasonable grounds instituted vexatious proceedings or conducted proceedings in a vexatious manner, the judge may order that no further proceedings be instituted or current proceedings continued without leave of a judge.

In Dale Streiman & Kurz LLP v. De Teresi, Mr. De Teresi had commenced 73 proceedings over 10 years. According to the court, Mr. De Teresi had a history of serially litigating against the same party over essentially the same set of facts. He brought sequential lawsuits, often suing lawyers who had acted for or against him in past proceedings and continued to litigate even when a settlement had been reached. The court held that Mr. De Teresi had deliberately misled the court and instituted proceedings that could not succeed but were simply designed to harass other parties. Mr. De Teresi was declared a vexatious litigant and could no longer institute proceedings without leave.

Finally, if a section 40 order is not yet open to the defendant, the defendant can ask that a judge be appointed to case manage all proceedings commenced by the vexatious plaintiff. Once assigned, a judge will quickly take the measure of the plaintiff and begin to shut down frivolous proceedings and useless motions.

Thanks for reading!

Justin

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Given the events of last week, it is hard not to blog on the Conrad Black verdict.  Much has been written with more to come.  In one of my spring blogs, I commented, with some admiration, on Black’s perseverance in the face of overwhelming odds and noted the importance of steadfastness in litigation.  Of course, the danger for Black, as with all other litigants, is that perseverance becomes intransigence.  According to a variety of talking heads, Black had ample opportunity to settle with the shareholders and avoid the entire mess, but refused. 

I will leave it to others to comment on the justness of the Black verdict.  However, building on yesterday’s blog, which addressed the importance of gathering and putting forward the right evidence, the Black verdict is instructive.  Black’s right-hand man, David Radler, was ultimately not believed by the jury.  Black’s defence team went to great lengths to paint the prosecution’s star witness as a blagger and a liar; they obviously had some success.

What was interesting is the fact that three “small town” newspapermen were, in fact, believed by the jury of 12 ordinary men and women.  The three claimed that they were suspicious when Black tried to inject himself through non-competition agreements into the sale of newspapers.  To the jury, their evidence rang true and was credible; Black was up to no good.

In the end, Black was convicted on the evidence of strangers or third parties to the litigation.  The three newspapermen had nothing to gain by testifying.  Their evidence, presented in a sincere and congenial way, proved to be the undoing of Black.  It is trite to say that litigation is unpredictable.  However, when witnesses who have nothing to gain give evidence, it is best to sit up and take notice.

Thanks for reading!

Justin.

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Listen to "Demand Promissory Notes and the Estate"

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Craig and Bianca discuss demand promissory notes and the recent decision of Hare v. Hare [2007] 83. O.R. (3d) 766. The Hare decision specifically deals with the limitation periods applicable to the enforcement of a demand promissory note.

Craig and Bianca also discuss demand promissory notes in the estate context, and the considerations parents should take into account when making demand loans to children.

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Listen to "Probate Fees"

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During Hull on Estate and Succession Planning Podcast #69, Ian and Suzana discuss the topic of probate fees. They discuss probate fees, probate planning, and tax avoidance.

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Over the next week, I will blog on a variety of topics within the estate and and trust world. I will canvas notable case law as well as draw on my recent experience. My first topic deals with evidence.

It is crucial when litigating to amass the right evidence. A great deal of thought usually goes into deciding whether to litigate, but once that decision has been made, the right evidence has to be put forward in order to win or to facilitate a favourable settlement. Much of what litigators now do is by way of application so affidavit evidence is key. The beauty of affidavit evidence is that it allows the lawyer time to draft or finesse the evidence - not change it, but just present it in its most persuasive format.

When dealing with a will challenge and capacity, the notes of the solicitor who drew up the will are obviously critical, as is any medical evidence particularly from a family doctor. In a guardianship fight, medical evidence is again key, but so is evidence from family or friends. However, when deciding what evidence to submit, a careful litigator will take the time to decide what evidence is required over and above the usual. In other words, what avenues are worth exploring that may reveal the unexpected. Is there some person who may be able to add fresh evidence that will make the difference and carry the day?

In a recent guardianship case that I was involved with, the evidence of two neighbours turned out to be critical. The neighbours were able to comment on the slow deterioration of the incapable. As family members had applied to the court to be appointed guardians, the neighbour were also able to comment on whether the family members visited and how often. The neighbours, who still kept in touch with the incapable, were also able speak to the wishes of the incapable when it came to who should look after the incapable. A caregiver at a nursing home was also in a position to comment on the mental state of the incapable and, in fact, assisted a doctor who was retained to prepare a retrospective assessment. What the neighbours and the caregiver brought to the table was the fact that their evidence was credible and independent. In other words, they had no particular stake, one way or the other, in the outcome of the litigation. They were simply interested in doing what was best for the incapable. When it comes to evidence from outside or third parties, their evidence will likely be believed because it is seen as untainted. As a result, every effort should be made to get evidence from outside or third parties and from sources that may be out of the ordinary.

Thanks for reading.

Justin

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In Ontario, a valid Holograph Will, by definition, is made and signed entirely in the handwriting of the testator. While this sounds simple enough, such documents often invite litigation.

For the person propounding such a Will, the first objective is to prove that the handwriting is that of the alleged testator. Of course, another distinctive feature of a Holograph Will is the absence of witnesses. Proving the identity of the author of a Holograph Will therefore usually requires expert analysis of the handwriting. The expert may encounter difficulties. Rather than writing a Holograph Will in her ordinary handwriting, the testator may have printed the document.

To successfully prove the handwriting of the testator, an expert typically requires several samples of the testator’s signature and writing style. In the absence of such samples (and in the absence of witnesses) it is far from a certainty that the Will can be proved. Further complicating matters is the absence of the original.

While a copy of a Will can be proved in the right circumstances, the absence of witnesses makes it more difficult to prove a copy of a holograph will. On a final note, Holograph Wills frequently give rise to questions of interpretation.

Until next time,

David

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Persons found to be incapable to manage their property may, nonetheless, be capable to marry (for an in depth discussion of this issue see the 1998 decision of Justice Cullity in Banton v. Banton).

This reality gives rise to all kinds of potential legal dilemmas and truly represents the flashpoint between capacity litigation and family law litigation. If a person incapable of managing their property enters into a marriage, there is a near-certain likelihood that friction will develop between the new spouse and the incapable person’s substitute decision maker.

In large part, the making of financial decisions together is one of the defining characteristics of a marriage. In the situation of a marriage between a capable person and an incapable person with a guardian of property, the substitute decision maker inevitably has a role to play. And what if the new spouse brings a child into the marriage?

Clearly, the family law regime imposes support obligations upon spouses in the event of separation. But how is this obligation reconciled with the obligation of the substitute decision maker to act in the financial best interests of the incapable person?

From the perspective of the legal practitioner, expertise in both family and capacity law is required to seek a creative resolution of any disputes that can develop

Have a great day,

David 

 

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If a Will has been proved in common form (i.e. by an administrative proceeding) as opposed to solemn form (i.e. by a judicial proceeding in open court), longstanding English authority has stood for the proposition that the next-of-kin remain, as of right, entitled to have the will proved in solemn form.

However, this entitlement is not absolute. When the next-of-kin have a benefit under the Will, are served with the Notice of Application for Probate in common form, and take no steps to challenge the Will, they may be barred from later seeking to challenge the Will.

So, for instance, in the recent Ontario case of Bermingham v. Bermingham Estate [2007] O.J. No. 1320, when the only daughter of a deceased permitted a Will to be proved in common form and then, eight years later, moved to have the Certificate of Appointment returned to the Court, the Court denied the request on the basis that the beneficiaries relied to the next-of kin’s acquiescence to their detriment. In short, the Court invoked the equitable doctrine of laches to deny relief.

While, intuitively, a delay of eight years in waiting to commence a will challenge is not justifiable, there may be an appropriate case in which the Court will grant relief to a delinquent challenger. Such a case will turn on the personal circumstances of the next-of-kin and the explanation for their apparent acquiescence which may or may not be reasonable.

In addition, evidence of suspicious circumstances surrounding the making of a Will may tip the balance in favour of an Order returning the Certificate. Certainly, any excessive delay should be avoided in making the decision to challenge a Will.

Have a great day.

David

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Listen to "Telling a Story and Probate Planning"

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During Hull on Estate and Succession Planning Podcast #68, Ian and Suzana discuss a case found in Jordan Atin's book The Family War. They also delve into the topic of probate planning.

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Listen to "The Dog Days of Summer: Planning for the Transfer of the Family Cottage"

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Justin and Megan discuss estate planning issues surrounding the family cottage. They cover specific practice tips of transferring the family cottage and the consequences of poor planning.

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I just stumbled across this story about the labour dispute in Montreal’s Notre-Dame-des-Neiges Cemetery . As a result, burials can’t take place and apparently people’s remains are starting to pile up, so to speak.

The problems started in May of this year when the management of the cemetery locked out its unionized maintenance workers. Apparently, ongoing negotiations about work conditions and pensions had stalled leaving the workers without a collective agreement.

Since the lockout began in May, no burials or cremations have taken place. The bodies have been kept in a storage facility since that time. However, space in the facility is limited and management is searching for new places to store the bodies until they can be buried or cremated. The most recent suggestion is that the bodies be kept in refrigerated trucks until the cemetery can be reopened.

According to Guy Dufort, the lawyer for the cemetery, for now the cemetery has managed to expand its current storage space so as to accommodate up to 625 coffins and, as of June 12, only 250 of the spaces had been filled. The cemetery receives approximately 40 “new arrivals” per week .

At this rate, the cemetery expects to have enough space to store the bodies until the end of September. However, when and if space runs out, the current contingency plan is to store the bodies in a truck that was previously used for storing frozen food.

Have a great weekend!

Megan F. Connolly

 

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In Ontario, an estate becomes liable for probate fees when the estate trustees apply for a Certificate of Appointment. Depending on the value of the estate, these fees can sizeable and cannot by set off by debts owed by the Deceased or estate-related expenses.

The main reason probate is required is because the estate trustees will require proof of authority before they are permitted to deal with certain assets. For example, generally speaking, banks will not release funds to estate trustees unless they have a Certificate of Appointment. Similarly, estate trustees will usually not be able to transfer real property into their names, list it for sale, or enter in to an agreement of purchase and sale without the Certificate of Appointment. Luckily, not all estates require a Certificate of Appointment to be administered. If the estate trustees can avoid applying for probate, then they can avoid paying probate fees.

There are several planning techniques that can be used to avoid the necessity of a Certificate of Appointment and, thus, paying probate fees:

•  Making inter vivos transfers of property - if you give it away prior to death, it won't form part of your estate;
• Making more than one Will - in one Will you deal with assets that will not require probate, while in the other Will you deal with assets that will; 
• Making RRSPs, RRIFs, and insurance policies payable to a named beneficiary, rather than your estate; and Transferring property into joint ownership.

By giving some thought to how you structure your estate, it might be possible to save a significant amount of money on probate fees - or avoid them all together.

Thanks for reading,

Megan F. Connolly

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Yesterday I blogged about deciding who to leave your cottage to in your Will.  Today I thought I would discuss 3 different ways of transferring the cottage.

By Specific Bequest
The most obvious way is to make a specific bequest of it in your Will, leaving it to a named beneficiary (or beneficiaries who will own it jointly).  The beneficiaries will receive direct ownership of the property and it will be theirs absolutely, do use as they please.

If there will be multiple beneficiaries, you should give some thought to whether you would like them to receive the cottage as joint-tenants or tenants in common - this will affect what happens to the cottage on the death of one of the beneficiaries.  If you think you would like them to own the property jointly, then this will need to be taken care of at the planning stage.

By Testamentary Trust
Another option is to leave the cottage in a trust - in which case you would designate how long the trust is to remain in existence and who the ultimate beneficiaries would be. 

This option is useful if you would like your spouse to continue to have use of the cottage during his or her lifetime, but would then like it to go to your children. This option also allows you to put conditions on the term of ownership as well as to provide for the continued maintenance of the cottage.

By Inter Vivos Trust
This option involves transferring the cottage into a trust for the beneficiaries during your lifetime.  The advantages of this option are that your estate won't have to pay probate fees or taxes on the
property after your death.  On the other hand, you may trigger tax liability while you are alive.

Different options will work for different people - if you have a cottage, this is definitely a topic you should discuss with an estate planning expert.

Thanks for reading!

Megan F. Connolly

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Listen to "Joint Accounts"

Read the transcribed version of "Joint Accounts"

During Hull on Estates Podcast #66, Ian Hull spoke about a conference he attended and spoke at, Podcasters Across Borders, and also discussed joint accounts, focusing on the resources found at jointasset.com, concerning joint accounts and their role in estate litigation.

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Listen to "Probate Defined"

Read the transcribed version of "Probate Defined"

During Hull on Estate and Succession Planning Podcast #67, Ian and Suzana discuss the topic of Probate. They throughly explain the concept and cover the different roles that Probate can play in a successful succession plan.

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With the lazy days of summer upon us, many of you will be spending time at your family's cottage. I thought that for a couple of my blogs this week, I would discuss inheritance issues that arise with
respect to the family cottage. Today I will discuss choosing the appropriate beneficiary of the cottage.

The most obvious consideration is whether you want the cottage to be left to a named beneficiary at all. An alternative option is to allow the property to form part of the residue of your estate and leave it
to your estate trustee to determine how it is dealt with.

If you want the property to be left to a named beneficiary (or beneficiaries) it is worth considering who wants it and who would use it most. If there is one family member who has a strong attachment to
the property it might make sense to leave it to him or her.

Another option is to leave it to more than one beneficiary. This might be the best solution when there are a multiple family members who enjoy using the property and you want them to all continue to have use of it after your death. However, it is important to be realistic when considering this option – are the family members you hope to share the cottage likely to get along with each other or will a share arrangement just encourage fighting amongst them?

If you're unsure of who would be the best person to inherit your cottage, it might be worthwhile discussing the matter with your family and seeking their input.

Thanks for reading,
Megan F. Connolly