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 Hughes v Miller, the female plaintiff and the male defendant were never married but lived together in a spousal-type relationship for about 12 years. They originally lived on the defendant’s boat until 1993 before moving to an island. The agreement and expectation of the parties was that they would be equal owners of the island property. While the purchase money for the island property was put up by the plaintiff and her mother, the defendant’s contribution was to be in the way of material and expertise in building a permanent home on the property. However, the defendant only built a very basic cabin. 

In 1995, the defendant inherited property from his aunt. The plaintiff helped pay property taxes on the inherited property. Furthermore, as the defendant became ill in 1999, he ultimately contributed less to the parties’ expenses. 

The plaintiff sought a declaration of a constructive trust over the inherited property based on unjust enrichment. The plaintiff claimed she supported the defendant over the course of many years and that her financial contribution to the defendant enabled him, among other things, to pay taxes on the inherited property. Alternatively, she sought monetary compensation for the defendant’s enrichment. 

The defining feature of the case is that the inherited property came to the defendant by way of an inheritance. As noted by the British Columbia Court of Appeal, the case was different from the majority of cases where the parties lived together and jointly built up assets over many years. If, in fact, the plaintiff was entitled to any trust claim to the inherited property, such a claim would derive from what she did after the defendant inherited it.

However, the court found that it would not be appropriate to award the plaintiff a constructive trust remedy over the inherited property, having regard to her relatively sparse direct contributions to maintaining or improving the property after the defendant inherited it. A constructive trust is the appropriate remedy for unjust enrichment only where a monetary award is insufficient and where there has been a direct contribution to the property by the party seeking such a remedy. 

According to the court, spouse-like care and assistance, some personal and some financial, entitled the plaintiff to a monetary award based on unjust enrichment. In the circumstances, the court felt that an award to the plaintiff of one-third of the value of the property accruing to the defendant was fair.

Justin

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One of my partners likes to point out that we are in the “business of death”. The phrase is a bit morose, but probably accurate. One of the things we therefore do around here is look at the daily Globe & Mail obituaries. Many estate practitioners scan the obituaries in their local newspaper to see whether a client has passed away. From a professional point of view, if a lawyer was named as estate trustee because he/she drafted the Will, they take on fiduciary obligations. 

In any event, I try to approach obituaries with a positive spin. I often read an obituary with admiration for the remarkable life lived. Most of the obituaries I read canvass the lives of a generation that is often called the “greatest generation”. Many of the people I read about survived the depression as children or young adults and lived through World War II with all its agony, grief and sacrifice. They greeted the prosperity of the 1950s with relief after a long war, witnessed and ultimately embraced the social revolution of the 1960s, raised successful children (baby boomers) who themselves are changing the face of Canadian society. The greatest generation is, in fact, a testament to what can be accomplished when hard work, sacrifice and compassion are brought to bear. 

It was along these lines that I read with interest the recent passing of Anna Marie De Sousa. Mrs. De Sousa, along with her husband, was a shining star when it came to charitable fundraising in Toronto. She was the founder of the Brazilian Ball, a wild extravaganza held every year to raise money for charity (the recipient changes every year). I never met Mrs. De Sousa, but I certainly read about her in the newspaper and the success that her Brazilian Ball ultimately came to represent. The glittering elite of Toronto would come out to watch scantily clad Brazilian dancers and raise millions of dollars for a good cause. No doubt, there will be follow-up tributes to her life in more detail than the obituary that recently appeared in the Globe & Mail. However, she is an inspiration to many of us. Much can be accomplished in life if we set out mind to it. She made Toronto a better place and there are many others who strive to do the same.

Justin

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It is often impossible to predict how costs will be decided by the presiding judge at a motion, application, or trial.  The Rules of Civil Procedure encourage a judge to fix the costs of the proceeding before him or her. A judge has wide discretion to award costs - discretion that an appeal court will be reluctant to interfere when faced with the issue. With the demise of the infamous cost grid, costs have tended to come down and the court is now largely motivated by deciding what is reasonable in the circumstances and fair to all parties with an eye to the factors listed in Rule 57.01(1).

An interesting case recently released by the Ontario Superior Court of Justice in Rand Estate v Lenton caught my attention.  In a relatively rare decision, the court awarded costs against the solicitors for the respondents.

According to the court, the conduct of the solicitors for the respondents caused costs to be incurred without reasonable cause or wasted by undue delay, negligence or default. The solicitors for the respondents systematically engaged in a pattern of inappropriate conduct, including: (1) inordinate and unnecessary delays; (2) bringing numerous and unnecessary motions; (3) being inadequately prepared; (3) failing to appear; (3) disregarding the professional obligation to be civil and courteous to others; (4) presenting arguments that had no merit; (5) acting for the respondents despite having a clear conflict of interest; (6) failing to do anything to resolve the litigation; (7) disregarding court orders; and (8) continuing to produce documents in contempt of a court order.  As a result, the court found it appropriate to award costs against the solicitors for the respondents on a substantial indemnity basis to address the costs thrown away by the applicants. 

The case, and the laundry list of improper behaviour, is a good reminder to all counsel to think long and hard about tactics and strategy (no case is really worth sullying your own reputation and credibility). Lawyers also need to keep in mind that they are not just mouth pieces for their clients. Counsel should advise their clients of the minimum standard of behaviour, decorum and professionalism expected by the courts. A good way to control your client is to remind him/her that costs can be awarded against a party who makes frivolous claims, or engages in egregious behaviour. Of course, lawyers are clearly not immune from costs and must govern themselves accordingly. If a client refuses to listen or expects you to take a position that will be frowned upon by the court, it is time to get off the record. 

Justin

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Welcome to my week of blogs! As you may have gathered, lawyers at Hull & Hull alternate weeks when it comes to blogging.  The hope is to provide you with a cornucopia of perspectives on various issues of interest to the estate bar and the profession generally. We try to mix light-hearted topics with serious ones. 

Turning to today’s blog, I read with interest that Pavarotti’s Will was recently opened. The great tenor ultimately succumbed to pancreatic cancer. Pavarotti was colourful both on and off the stage. He was married twice and sired 4 children. It now turns out that Pavarotti’s estate is as rich as his voice.

Pavarotti left the bulk of his estate to his second wife and four children pursuant to a recent June 13^th Will (his youngest and only child from his second marriage is four years old). In a second Will dated July 29^th Pavarotti apparently created a trust in favour of his second wife of approximately €15 million.  This was a surprise to his friends and family.  The second Will dealt with Pavarotti’s three New York apartments as well as personal items, including paintings by Matisse.  The family has denied rumours in the Italian press that Pavarotti’s first and second families were at odds. Like so many, Pavarotti waited until the end of his life to deal with his Estate.  No doubt, the opera star was reluctant to confront his own death (though death looms large in many operas).  

The reading of a Will by family members is often fertile ground for surprise and disappointment. Many testators use a Will to settle old scores, reward or punish behaviour, or favour those who nursed the testator through illness or old age. 

I struggle with whether to advise a client to reveal the contents of his/her Will to family members before death. Overcoming the trepidation to execute a Will is one thing, but to then reveal its contents to family members, who may benefit unequally, is an entirely different matter. For example, a disappointed son or daughter may punish their parents by no longer seeing them or cutting off access to grandchildren.  However, if the Will comes as a surprise after the testator’s death and is a disappointment, the potential for litigation is rife.  A disappointed beneficiary will justify litigation by claiming that they are only doing “what mom really wanted”.  Emotions come into play, judgment becomes clouded, and lawyers are retained. 

In the end, there is no easy answer as to whether to advise your client to reveal the contents of his/her Will.

Ciao, Justin

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In Singh Estate v. Shandil, 2007 BCCA 303, the testator had executed a 2003 Will and an accompanying Statutory Declaration (SD). The SD contained a clause forgiving a $100,000 loan to the testator’s daughter.   

The testator’s relationship with his daughter subsequently soured. In 2004, he signed a document purporting to revoke the SD. He also swore a new Will which specifically instructed the executor to collect the loan. A demand was made for repayment. Shortly thereafter, the testator died and his estate commenced a claim for repayment.

At first instance, it was found that the daughter met the two required elements to establish a gift, namely, that the donor intended to make a gift, and that the donor delivered the gift.  It was also found that the SD was irrevocable as there was no express power to revoke (an implied power won’t suffice). The estate trustee argued that because the 2003 Will was referenced in the SD, the SD was merely designed to explain the provisions of the 2003 Will, and was thereby a testamentary document.   The judge did not accept this argument (I recommend reading the case to get a full flavour of the circumstances), and the trial decision was upheld by the British Columbia Court of Appeal.  

So when your client intends to document his/her forgiveness of a loan made to a loved one, it might be worthwhile to consider including a revocation clause in the SD, or like document.  That said, I wonder whether it is a viable option in practice. Perhaps waiting until your death (by forgiving a loan in your Will) is a simpler and better way to approach it.

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In the September, 2007 edition of Will Power, you will find an article with the above-captioned title, where the author comments on Bolduc v. Carrier, 2006 QCCS 5485, a decision of the Quebec Superior Court with an interesting and tragic fact-scenario.  

The parents of Anthony, a three-year old boy with brain cancer, set up a trust for monies donated by the public to help pay for Anthony’s medical care. More than $450,000 was donated and deposited into the trust account. Anthony’s parents were the joint settlors of the trust, and three trustees were named, Anthony’s father, Anthony’s aunt and a family friend. 

Anthony sadly died a few months later.  At that time approximately $200,000 was remaining in the trust (about $250,000 of undocumented expenses had been paid out).  In addition to an accounting issue raised in respect of the spent monies, which I will not address in this blog, the trustees couldn’t agree on what to do with the trust balance. Anthony’s father wanted the money to go to him and his wife, and relied on the Quebec Civil Code (article 1297) to support their position. The other trustees wanted it to go towards payment for “sick children and their care”, pursuant to an article in the trust deed that granted the trustees the discretion to use the funds in that manner.

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Once a Certificate of Appointment of Estate Trustee (probate) is issued, an estate trustee is legally able to liquidate and distribute the assets of an estate. It can take anywhere from a few weeks to several months before probate is granted, and the delay can be costly. In fact, I was recently talking to someone upset about the difficulties caused by having to wait almost one year - he understood he couldn't sell his late mother's house until the Certificate was issued, and he had the sole financial burden of maintaining the property until that time. 

And so I wondered, is probate absolutely necessary in all cases? Bob Aaron, a real estate lawyer, addressed this very issue in a recent article in the Toronto Star. His advice was that in most cases obtaining probate is not necessary, and he set out the following steps that can be taken to avoid it:

Land Titles System

- register an application containing a copy of the Will and a death certificate;

-file a declaration that the Will was the last Will and the value of the estate does not exceed $50,000 (in appropriate circumstances, the land registrar waives the $50,000 limit); and

-file a promise, signed by the beneficiaries, to indemnify the Land Titles Assurance Fund in the event a third party claim is made as a result of registration of the application to transfer title to the land.

Registry System

Mr. Aaron notes that it is easier to transfer title to land registered under the old registry system (by simply registering a copy of the Will and, typically, a declaration by a witness to the Will). He also states that land which was previously registered under the registry system and subsequently converted by the government to the electronic land titles system can often be transferred under the old registry rules if there has been no other registration on title since the conversion.

So it seems retaining an estate administration and/or real estate lawyer to explore your options could end up saving you a lot of time and money in the right circumstances. 

Thanks for reading,

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This week on Hull on Estate and Succession Planning, Ian and Suzana discuss things to remember when drafting a co-ownership agreement of a recreational property with family or friends.

Click "Continue Reading" to read the transcribed version of this podcast.

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An article in Saturday's Globe and Mail with the above-captioned title caught my eye. The author, Tim Cestnick, sends the message that "doing nothing - that is, refraining from certain transactions" - can often make sense in tax planning. To illustrate his point, he shared a story of Ruth, an elderly woman with a dilemma involving her cottage and her children. 

Ruth owns a cottage that she rarely uses. The cottage was purchased for $50,000 in 1975, that same amount was invested in it over the years, and it is currently worth $500,000. Ruth decides to give the cottage to her two children. The problem? If she does so, she'll be deemed to have disposed of the property at fair market value, which could trigger a taxable capital gain and a potential tax bill of almost $100,000. That result isn't workable for Ruth, particularly as there will be no sale proceeds available to pay the tax bill.

While it was noted in the article that Ruth may be better off waiting until she dies to transfer the cottage to her kids (this will defer tax until that time), the fact is that she wants it transferred now for sentimental reasons. The solution? "Sell" the cottage to her children for fair market value in exchange for promissory notes. The notes will be worded such that Ruth will collect the proceeds over at least five years. This will allow Ruth to pay tax on her capital gain over a five-year period. As Ruth has no intention of collecting on the notes, she will make sure to forgive the promissory notes in her Will (which will have no adverse tax consequences).

This article illustrates how a creative approach tailored to a person's unique circumstances is often needed in tax and estate planning. Mr. Cestnick reminds readers to visit a tax pro if you hope to try this, and I would recommend consulting with an estate planning lawyer as well. You should also tune in to Ian Hull and Suzana Popovic-Montag’s recent pod-casts focusing on cottage properties.

Have a good day,

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I knew Summer’s end was near when I received the Fall mailings of 2007/2008 Continuing Legal Education (CLE) programs.  As expected, there is a full calendar of seminars and events coming up that lawyers in an array of practice areas should consider attending.  Below I have set out a few of the highlights for estate practitioners:

September 24, 2007 - Trusts, Trustees, Trusteeships II [at the OBA Conference Centre]

This full-day event covers the use, treatment and taxation of trust relationships.  This is a fairly complex area of estate law, and the talks are targeted at those with intermediate and advanced knowledge in the area.

October 5, 2007 – Hull & Hull LLP’s Quarterly Breakfast Seminar [at the OBA Conference Centre]

This two-hour morning seminar hosted by Hull & Hull LLP focuses on three issues – settlements when dealing with minors and incapable beneficiaries, secret trusts and powers of appointment, and mutual wills. 

November 5 & 6, 2007 – 10^th Annual Estates and Trusts Summit [at the Law Society of Upper Canada]

As the title indicates, this event happens only once per year.  It is an estates law marathon boasting more than 25 esteemed speakers and almost the same number of topics.  Both estate planning lawyers (day 1) and estate litigation counsel (day 2) are sure to benefit from attending the summit.

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The Ontario Superior Court recently held that an action for damages under the Canadian Charter of Rights and Freedoms could not be continued by the Plaintiff’s estate following the death of the Plaintiff.

In Giacomelli Estate v. Canada (Attorney General), 2007 CanLII 32908 (Ont. S.C.), Mr. Giacomelli commenced an action for damages for breaches of the Charter arising from his arrest and imprisonment from 1940 to 1945 based on his Italian origin. After the action was commenced, Mr. Giacomelli died, and his Estate Trustees obtained an Order to Continue. This Order was issued by the Registrar on a motion without notice, which is the normal practice for obtaining such an Order.

The Defendant moved to set aside the Order to continue. They argued that the Supreme Court of Canada decision of Canada (Attorney General) v. Hislop, (2007) S.C.C. 10 was dispositive of the motion. There, the SCC held that “s. 15(1) [Charter] rights cannot be enforced by an estate because those rights are personal and terminate with the death of the affected individual… an estate is just a collection of assets and liabilities of a person who has died. It is not an individual and it has no dignity that may be infringed.”

The Ontario court extended this ruling to claims under s. 7 of the Charter as well.

The court held that while s. 38(1) of the Trustee Act allows an Estate to continue with certain tort claims, this section does not apply to Charter claims.

Have a great weekend.

Paul Trudelle

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The recent case of Taylor (Estate) (Re), 2007 CanLII 23178 (Ont. S.C.) illustrates the principal that where there is an issue as to who should be acting as estate trustee during litigation, the easiest and most effective solution is to appoint a neutral third party.

There, the deceased appointed her two children as estate trustees. Disputes arose as between the two children. Litigation resulted, with the daughter applying to be appointed as sole estate trustee, for an order that the deceased’s house, occupied by the son, be sold, and that the son repay certain monies to the estate. The son applied for directions on a number of issues, including who should be appointed as estate trustee.

In the materials put before the court, both parties made serious allegations against the other regarding the misuse or mismanagement of estate property.

The court held that appointing both siblings would be a “recipe for disaster” and would result in a “paralyzed estate”.

Appointing only one sibling would “heighten the mistrust” and would exacerbate matters.

The easy answer for the court was to appoint a neutral third party. The parties were given time to agree on the selection and appointment of a mutually agreeable third party.

Often, the fight over who is to be estate trustee in a contested proceeding is one of the first issues to be dealt with. The court recognizes this, and recognizes that control over the estate is a flashpoint. Giving control to one party to the exclusion of the other is seen as exacerbating distrust, whether warranted or not, and raising the opportunity for abuse. For this reason, the court will often seek to avoid the problem by simply appointing a neutral third party.

Thank you for reading.

Paul Trudelle

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The Prince Edward Island court recently entertained an Application for directions by the trustees of the estate of Owen Connolly, reported at Connolly Estate (Re) [2006] P.E.I.J. No. 61.

Mr. Connolly died in 1887. He left a will which established a trust “for the purpose of educating or assisting to educate poor children resident in Prince Edward Island who are members of the Roman Catholic Church and who are either Irish or the sons of Irish farmers...".

The trust was said to have paid out over $1 million in bursaries since inception, and had a reserved capital of approximately $1 million.

The trustees stated that with the passage of time, the question of eligibility had become more difficult. The trustees sought direction from the court as to whether eligibility was open only to males, and whether eligibility was open to those who had “significant” Irish ancestry, being at least 50%.

It was noted that the administration of the trust was not affected by the discrimination provisions of the relevant human rights legislation.

The court had little difficulty in concluding that the trust did not benefit males only.

A more difficult question is what was meant by the term "Irish". The court reviewed the history of Ireland and its society and noted that 19th century Ireland was not the product of a pure strain of "Irish", but was a melding of a variety of ethnic strains of immigrants who arrived at different times through history. The court traced the history of Ireland back to 3000 B.C. The court concluded that when he referred to a person being “Irish”, the testator intended to refer to either a person who had emigrated from Ireland, or to a person who was a descendent of a person who had emigrated from Ireland. By making reference to "sons of Irish fathers", the court concluded that the testator had visualized the Irish blending into the larger community in PEI, and thus, felt that having 50% Irish blood was reasonable and sufficient.

The case is an interesting read, as it not only reviews Irish history, but it sets out in some detail the life of the testator in the mid-1800s, including a detailed report of his death in December, 1887.

Thanks for reading,

Paul Trudelle

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The Ontario Supreme Court of Justice recently ruled on the issue of whether a solicitor can assert a solicitor’s lien over an original will.

In Szabo Estate v. Adelson (2007), CanLII 4588, the solicitor acted as estate solicitor, having been retained by the estate trustee named in the will. He rendered an account for legal services in the amount of $3,230.79. This account was not paid, and the solicitor asserted a solicitor’s lien over the documents in his file, including the original will.

Interestingly, the solicitor offered to release the will if the estate trustee agreed to a charge against the estate. The estate trustee would not agree.

The estate trustee brought an Application under s. 9 of the Estates Act for the production of the original will. In considering the Application, the court noted the basic proposition that where a client discharges a solicitor without cause, the solicitor may exercise a lien for his or her fees over the documents in the solicitor’s possession, and may retain them until paid. 

The estate trustee relied upon an article and an excerpt from a text that stated that a solicitor’s lien did not extend to a will. The court found that the article did not cite any authority for that proposition, and that the case referred to in the text, an 1823 decision, did not support the proposition, either. 

This illustrates that one should not blindly rely on articles and texts as setting out black letter law (unless, of course, one is relying on Hull and Hull, Probate Practice).

The court concluded that a solicitor can exercise a lien over a will, just as he or she could over any other important document.

However, the court can and will intervene in order to prevent an injustice to a client resulting from the exercise of the lien. In the case under consideration, the court ordered the solicitor to deliver up the will IF AND WHEN the estate trustee agreed to a charge against the estate in the amount of the solicitor’s account.

Thanks for reading,

Paul Trudelle

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Leona Helmsley’s estate continues to raise eyebrows, and serves as an illustration of what not to do when estate planning.

Following her death, it was revealed that she set up a $12m US trust to care for her dog, Trouble.

Last week, it was reported that the named trustee of the trust, her 80 year old brother (who received over $15m US himself from the estate) does not want to care for Trouble. It is yet to be seen whether the alternate trustee, Leona’s grandson, will take on the responsibility.

In addition, Leona’s will directed that Trouble, following his death, be buried with her at the family mausoleum. However, state laws forbid animal remains from being interred at human graveyards.

To make matters worse, it appears that Trouble bit a housekeeper, and the housekeeper now wants a piece of Trouble’s money.

The present circumstances illustrate the need for open discussion of estate plans. Trustees should be consulted in order to ensure that they actually will agree to take on the role of trustee; special requests should be explored to ensure that they are feasible.

Thank you for reading,

Paul Trudelle

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There is an interesting article in the New York Times, entitled “Big Gifts, Tax Breaks, and a Debate on Charity”. 

In the United States, the wealthy are giving an unprecedented amount of money to charities, both while alive and in their Wills.

While the charities undoubtedly benefit, so too do the givers or their estates through allowable tax deductions. The NYT estimates that for every three dollars which is donated to charity, the federal government gives up at least a dollar in tax revenue.  

Some argue that the public benefits more by these charitable gifts than they would if the money went to taxes. That is, charitable institutions spend money more wisely than the government would. 

However, not everyone feels this way. To some, the benefits reaped by charitable giving are not commensurate with the tax deductions that the donors receive. Part of this is because what qualifies for a tax deduction is so broad – and encompasses everything from the Salvation Army to a group established after Hurricane Katrina to help practitioners of sadomasochism obtain gear they lost in the storm. The NYT estimates that less than 10% of donations go to organizations addressing basic human needs, like shelter or food and, amongst the super wealthy, the % is even lower.      

The billionaire investor William H. Gross doesn’t believe the wealthy help society more than the government can, stating that “when millions of people are dying of AIDS and malaria in Africa, it is hard to justify the umpteenth society gala held for the benefit of a performing arts centre or an art museum…a $30 million gift to a concert hall is not philanthropy, it is a Napoleonic coronation.”  

Have a great weekend!

Megan Connolly

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I recently attended a seminar where estate planning to provide for adult disabled children was discussed. Once of the topics which arose was the extent to which parents are obligated to provide for an adult disabled child in their Wills. 

It is settled law in Ontario, that a testator has an obligation to make adequate provision for her dependants in her Will. Where she does not do so, those dependants can bring an application for support under Part V of the Succession Law Reform Act.

Section 57 of the SLRA provides that a dependant is a spouse, parent, child, or sibling to whom the deceased was providing support or was under a legal obligation to provide support immediately before her death. 

In its decision in Cummings v. Cummings Estate, the Ontario Court of Appeal recognized that the moral duties that a deceased owes a dependant are relevant in determining support. 

So then, do parents have a legally enforceable “moral obligation” to provide for an adult disabled child?

The answer is that it depends on whether that child would otherwise qualify as a dependant. That is, were they receiving support or legally entitled support immediately prior to a parent’s death? If the answer is “yes”, the child may be successful in bringing a claim. However, if the answer is “no”, the mere fact the child is disabled will not be sufficient to give rise to a right to support.

Have a great day!

Megan Connolly  

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With the new school year upon us and kids heading back to school, why not take a moment to consider what would happen to your minor child if you and your spouse died? 

Section 61(1) of the Children’s Law Reform Act provides that:

61. (1) A person entitled to custody of a child may appoint by will one or more persons to have custody of the child after the death of the appointer.

Section 61 of the Act goes on to include the following limitations:

• The appointer must be the only person entitled to custody of the child;
• If two or more people are entitled to custody of the child, the appointment will only be effective if both people die concurrently and the appointment has been made by both of them;
• The individual appointed must consent to act as guardian; and
• The appointment is only effective for 90 days, or until an Order for permanent custody is made within the 90-day period. 

Section 61 also applies equally to guardians of property of a child. 

As noted above, a testamentary appointment only lasts for 90 days. Section 47 of the CLRA provides that within the 90 days, the person appointed under the Will must bring a court application seeking permanent custody and must provide The Children’s Lawyer with notice of that application. 

While the thought of dying while their children are still minors is something that most people would rather not think about, if who receives custody of your minor children immediately after death is important to you and your spouse, you may want to give it some thought. 

Have a nice day!

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