To Vary a Trust or Not to Vary a Trust: Does a Statute have an Answer?

Those wishing to vary a trust in Ontario, can look to the Variation of Trusts Act (R.S.O. 1990, c. V.1) (Act) for the authority to do so. Although the Act is surprisingly only one section in length, don’t let the length fool you.

Essentially, the Act permits the Court to approve a variation of a trust under a will, settlement or other disposition on behalf of minor, unascertained, unborn or contingent beneficiaries if the variation, in the words of the Act, “appears to be for the benefit” of those persons.

While relying on the Act for jurisdiction to make a variation, there are many things to consider in pursuing a variation such as the procedure to follow and the criteria to meet in order to have the variation approved. 

 

In the well-known case of R v. Irving, (1975), 11 O.R. (2d) 442 (H.C.), the Court set out three criteria to consider in determining whether to approve a variation, namely: (i) does the variation keep alive the basic intention of the testator or settler?, (ii) does the variation benefit those for whom the Court is asked to consent?, and (iii) whether a prudent adult motivated by intelligent self-interest and sustained consideration of the expectancies and risks of the variation, would likely accept it?

 

There are a number of cases that have considered these criteria; too many to go into in this blog. Suffice it to say that the Act does provide an answer to the question as to whether one can vary a trust, but the answer is only a partial one as the Court will also consider criteria needed to be met in determining whether to approve a variation.

 

Enjoy the long weekend (and last of the summer), school starts next Tuesday.

 

Craig

Son Wants Nazi Father Declared Dead

The son of the notorious Nazi criminal Aribert Heim wants his father declared dead so that he and his siblings can manage his father’s assets. Aribert Heim fled Germany in 1962 when a warrant was issued for his arrest. The Simon Wiesenthal Centre has been tracking him since that time but has never captured him.

In 1997, the son and his sister discovered a German bank account in their father’s name containing 1.78 million dollars. The German government froze the bank account. The son says that if his father is declared dead and he inherits money from his father, he will donate it to the study of the Mauthausen concentration camp.

His son insists that he has not see his father since 1962 and has had no contact with him since that time with the exception of receiving two unsigned notes in 1962 and 1967. His father would turn 94 this year and he assumes that he is likely dead. However, throughout the last four decades Aribert Heim has been spotted numerous times and as late as last month; the Simon Wiesenthal Centre believed that they have found evidence of him living in Chile.  The son says that he is working with a lawyer to provide evidence of his father’s death.

In Canada, the court is authorized by the Declarations of Death Act to determine whether a person is dead on the basis of circumstantial evidence or the rule of common law which presumes a person dead after an unexplained absence of seven years or more. Click here to listen to a podcast on the Declaration of Death Act and the Absentee Act. Additionally, under the Rules of Civil Procedure, an interested party can also apply for the opinion, advice, and direction of the court.

Thanks for reading,
 

Diane Vieira

Estate Planning for the Newly Separated Spouse - Hull on Estates Podcast #125

Listen to Estate Planning for the Newly Separated Spouse

This week on Hull on Estates, Ian and Suzana bring us up to date on what has been happening at Hull and Hull over the summer. Jordan Atin appeared on Canada AM to talk about how to avoid The Family War. They have also added two books to their recommended reading list:

Duct Tape Marketing by John Jantsch

Endless Referrals by Bob Burg

Ian and Suzana then discuss issues to consider in estate planning for the newly separated spouse. They talk about the two different types of claims that can be made: Equalization and Claim for support.

A new Hull and Hull breakfast series will take place on Wednesday, October 8, 2008 and participants are encouraged to attend either via webcast or in person. You can also contact Hull and Hull by leaving a message or question with any of the following:

Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

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The Lord Beaverbrook Saga Continues

Previously, David Smith has blogged on the dispute between the Beaverbrook Art Gallery in Fredericton, New Brunswick and the Beaverbrook U.K. Foundation with respect to the ownership of the paintings and sculptures owned by the late Lord Beaverbrook. Click here to read about the background to this dispute and here to read about the costs awarded to the gallery.

You may recall that the arbitrator, retired Supreme Court of Justice Peter Cory awarded ownership of 85 out of the 133 paintings to the gallery. Justice Cory found that that artwork conveyed prior to the gallery opening were irrevocable gifts. In his decision Justice Cory referenced, amongst other evidence,  newspaper and media articles commissioned and authorized by the late Lord Beaverbrook as evidence of Lord Beaverbrook’s donative intent.

In a Notice of Appeal, the foundation accuses Cory of being biased against them throughout the hearing. Lawyers for the gallery has called the appeal baseless and state the accusation of bias were only made after the release of Cory’s decisions and have asked for the appeal to be dismissed. You can read the factum of the gallery on their website. .

At the beginning of the arbitration process both sides agreed to an appeal mechanism. Three former judges from three different provinces will hear an appeal of the arbitration decision of Justice Cory. Justice Coulter Osborne of Ontario was chosen by the gallery. Justice Thomas Braidwood of British Columbia was chosen by the foundation. Those two judges chose Edward Bayada, former justice of the Saskatchewan Court of Appeal to chair the panel. The panel will begin to hear arguments beginning in September 22, 2008.

With the foundation already ordered to pay the costs of arbitration, it will be interesting to see how costs are decided this time around.

Thanks for reading,

Diane Vieira

Will Challenge Litigation - Part 2 - Hull on Estate

 

Listen to Will Challenge Litigation - Part 2

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They cover how a comprehensive preliminary investigation can help litigation and discuss how a motion of claim is filed to set the stage to move forward with a trial.

Core documents that accompany these stages are:

  1. Medical records
  2. Solicitor's notes
  3. Financial disclosure

The next stage is the discovery process and will be the topic that gets next week's podcast off to a start.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

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Finding Legal Information Online

An abundance of legal information is available online and a new customized search engine that searches for content from law firms has become available. We often begin a search for online information by searching Google or a similar general search engine. Fee Fie Foe Firm is a Canadian law firm search engine that searches content from law firm sites. It allows you to search for articles, newsletters, bulletins, case commentaries, and other legal information produced by law firms in five jurisdictions.

This research tools joins two other free services, Lexology and Mondaq as a way to access publications from multiple law firms in a simplified way. Both these websites provide notification of new commentaries released by law firms by jurisdiction and topic in one daily email to the subscriber.

The growing sophistication of search engines highlights how much easier it has become to find specific information online. Last week, the federal Privacy Commissioner, Jennifer Stoddart addressed reporters at a meeting of the Canadian Bar Association about her office's concerns that private information contained in federal tribunal rulings is being spread through the internet and suggested the possibility of anonymizing federal tribunal rulings. She promised to revisit the issue in October when the Privacy Commissioner releases their report on the Privacy Act.

Thanks for reading,

 

Diane Vieira

The Olympics from a Legal Perspective

 The Beijing Olympic Games come to a close this weekend and the international sports community turns their attention to the 2010 Vancouver Games and the 2012 London Games.
 
The Olympics inspire a multitude of feelings and generate a healthy amount of debate. One thing for certain is that a tremendous amount of preparation is required by the hosting city and the effort of a variety of people are required to pull it all together.
 
An interesting article posted on timesonline looks at the impact of the Olympic Games on the legal profession. The article boldly declares that lawyers are as much a part of the sporting community as athletes. It goes on to describe how the Olympics generate a boom in legal work as a result of preventing ambush marketing and unauthorized broadcasts as well as both defending and prosecuting anti-doping cases.
 
For those interested in learning more about international sports law, a great international law blog Opinio Juris featured some excellent expert commentators during the Beijing Games. A compelling post discussed the growing prominence of athletes representing countries that they are not citizens of. The author contrasts a competitor’s identity vs. a national identity and explains the requirements under the Olympics Charter for an athlete to compete for a nation.
 
Congratulations to all the athletes and let's get ready for 2010!
 
Enjoy your weekend,

Diane Vieira

Just Because You Say So Doesn't Make It So

The approach taken in claims by or against the heirs, next of kin, executors, administrators or assigns of a deceased can differ from other types of legal proceedings simply because the requirements of Section 13 of the Ontario Evidence Act. Section 13 states:

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.

In other words, just because the adverse party says it is so, doesn’t make it so.

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 Burns 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; that additional evidence could be either direct or circumstantial though.

As such, attention to the evidence necessary to prove the case and how that evidence is to be marshalled is critical in these claims, whether that be by way of an Orders Giving Directions used to compel the production of documentation that others may have (ie. testamentary documents, medical records, solicitors records, financial records etc.), by way of an examination (ie. examinations for discovery, third party examinations or a de bene esse examination) or otherwise.

Focusing on the evidence that will be needed at trial or that will be persuasive in settlement discussions is but one of the first steps in formulating one’s approach to a claim.

Canadian Olympic Medal Count: holding at 13 (but hopefully with several more to come).

Keep cheering,

Craig

 

Passing of Accounts and Conflicts of Interest

On a contested passing of accounts, counsel may be requested to represent two or more clients, such as multiple beneficiaries of an estate or co-estate trustees. In such cases, it is critical to ensure that a conflict of interest does not exist. When counsel first meets with potential multiple clients their respective interests may well be perfectly aligned and identical and it may not appear that there is a potential conflict of interest. Further, all consent to the representation of multiple parties. 

In the case of multiple executors, in order to avoid a conflict of interest the controversial issues need to be addressed and discussed in detail. For instance, how will executor’s compensation be apportioned as between them? Is there a different relationship between each executor and the beneficiaries? Does one executor disagree with any actions taken by any of the other executors? Will their evidence be the same? Do the executors share the identical expectations of how the litigation should proceed as well as in respect of potential settlement? The potential disagreements can be discovered by exploring the issues up front.
 

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Will Challenge Litigation - Part 1 - Hull on Estate and Succession Planning

Listen to Will Challenge Litigation - Part 1

This week on Hull and Estates, Ian and Suzana kick off their new video format.This podcast is an audio version of the video podcast that is available on YouTube here: http://www.youtube.com/watch?v=udEcTpLFIkk


This week's episode also marks the beginning of a new segment that tackles Will Challenge Litigation step-by-step.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

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Passing of Accounts and a Joint Retainer - Hull on Estates #124

Listen to  Passing of Accounts and a Joint Retainer

This week on Hull on Estates, Craig Vander Zee and David Smith discuss conflicts of interest during Passing of Accounts trials and rules of professional conduct.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

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Day Eleven of the Olympics and Counting

Today, if I have my count right, is day eleven of the Olympics. For certain, the Olympics stimulate debate on a spectrum of important social, political, economic and, of course, athletic issues of our time. I do not intend to touch upon those debates. Over the past ten days of the Olympics, however, incredible stories of the athletes have arisen, and will no doubt continue to arise. Some, like Michael Phelps’ eight gold medals, involve incredible success, almost beyond one’s imagination, while others involve success on a more personal level or, as the saying goes, the agony of defeat. These stories, from whatever viewpoint, are quite remarkable and have no doubt involved the setting of objectives, planning and dedication and commitment to the goal.

While perhaps obvious, it continues to strike me as to the extent that these athletes live in the moment or for the day. So much rises and falls for them with one or in some cases several performances. What onlookers of the Olympics take away from the Olympics is no doubt personal but perhaps the notion of setting objectives, striving to obtain them while living for the day is the most universal.

What do these stories actually have to do with Estates? From a legal standpoint, nothing. However, perhaps the above notion may focus us to consider our own legacy and the steps that have been taken, or should be taken now, to ensure that those that benefit from that legacy are the intended ones.

Keep watching.

Craig
 

RULE 38.10 - TRIAL OF AN ISSUE

 

Many estate litigation proceedings start by way of an application. However, from a practical and legal standpoint, contentious applications should be converted to a trial of an issue(s). Where the parties agree that credibility is at the heart of an application, a trial is warranted. Rule 38.10(1) states:

On the hearing of an application, the presiding judge may… order that the whole application or any issue proceed to trial... 

In the normal course, once an application is converted to a trial of an issue, the court orders directions regarding the procedure to be followed by the parties (i.e. an order for directions).

In Gordon Glaves Holdings Ltd. v. Care Corp. of Canada (1998)[1][1], the Ontario Divisional Court considered the test to convert an application to a trial of issues:

The general rule is that the court will not determine genuine issues of credibility on the hearing of an application. Such issues should be decided at trial by the trier of fact [Citations Omitted/Emphasis Added]. In my opinion, the central issues in this case could not properly be determined without a trial, because they depended on questions of credibility. 

Proceeding by way of a trial of a trial of an issue, which requires oral testimony, will allow a judge to “eyeball” witnesses and decided who ultimately to believe. 

Recently, I was involved in a proceeding that alleged a secret trust. It was commenced by way of an application, but after some resistance from opposing counsel, the application was converted to a trial of an issue. In the end, the application could not properly be determined without a court deciding: (a) exactly what the deceased said to the alleged trustee and beneficiary (if anything); (b) what the parties understood the deceased to mean; and (c) what steps the parties did or did not take regarding the alleged secret trust. The court would have to decide “who to believe” and the parties’ credibility was clearly on the line. Pursuant to Rule 38.10, the application was converted to a trial of issues and an order for directions issued.

Thanks for reading. Enjoy the dying days of summer. 

Joi gin (Cantonese for good-bye)
 

Justin


 

"I HAVE A DREAM" (OR NOT) - ESTATE LITIGATION UNCHECKED

The superrich likely have the market cornered when it comes to epic estate battles - Howard Hughes, J. Howard Marshall (i.e. Anna Nicole Smith), and E. Howard Hunt (of silver fame) - quickly come to mind.

However, even the mildly famous or sainted can have their moment in the estate spotlight.  Recently, Luciano Pavarotti's family was in the news when a dispute arose among his offspring in respect of his considerable fortune.  They have apparently reached a settlement.


I also read with interest a recent US newspaper article indicating that two of Martin Luther King's children had filed a lawsuit against a third regarding a dispute over the civil rights leader's estate (J. Edger Hoover would have loved it).  Bernice King and Martin Luther King III filed a lawsuit in Atlanta in order to force their brother, Dexter King, to open the books of their famous father's estate.


From what I understand, the lawsuit claims that Dexter King, who is the executor of his father's estate, has refused to provide his brother and sister with documents concerning the estate's administration.  The lawsuit claims that Dexter King and the estate "converted substantial funds from the estate's financial accounts…for their own use".  The siblings were never told beforehand and are now seeking financial records and other documents in order to investigate the administration of the estate. 


Martin Luther King's "dream" seems to have stalled when it comes to sibling rivalry and the fortunes of his estate.  However, on a more serious note, the dispute once again reminds us of the importance of transparency in the administration of an estate and open communication between executor and beneficiary.

Thanks for reading.  Auf Wiedersehen

The Lion of Africa - An Evolving Legacy

 

I suppose that there are three ways to approach estate planning: (1) do nothing; (2) plan for the efficient and effective administration of one’s estate; or (3) create a legacy. Creating a legacy is by far the most romantic, but, in fairness, often requires a considerable amount of wealth (though that too is changing with private and community foundations).

I recently read a biography of Cecil Rhodes. He was an impressive man who strode across the British Empire like a lion. He was, of course, not without his considerable faults. Nevertheless, he led a remarkable life. He started life as a sickly and apparently not very bright child. He was sent to Africa to improve his health and ended up staking mining claims and founding the De Beers Mining Company. By the time he died, he controlled close to 90% of the world’s diamond production. In 1895, he had reportedly amassed territory three times the size of England and Wales, which came to be known as Rhodesia. 

In terms of his legacy, it did not turn out quite the way he wanted. The “white man’s burden” was thrown into the trash can of history. Rhodesia became Zimbabwe (which now lies in ruins stalked by a different menace). He used his personal fortune and influence to found a secret society, “the true aim and object whereof shall be the extension of British rule throughout the world”. Luckily for the world, his secret society evolved into the prestigious Rhodes Scholarship. Legacy is clearly a fickle thing and changing times demand a changed vision. Nevertheless, Cecil Rhodes made his mark through his estate, his considerable bounty, and a clear eye to the future (though a future he would not necessarily embrace). I wonder what the world will make of Bill Gates in 100 years.

Thanks for reading. Adieu

Guardianship Applications: Strong and Compelling Evidence

I am often approached by clients who are anxious to replace a relative’s attorney for property or personal care on the basis that the attorney is a non-family member or simply not up to the job. Many family members feel it is their right to take over the guardianship of a relative, especially a loved one. 

However, the bar that the court has set in terms of removing an attorney, with the obvious exception of misappropriation of funds, is a high one. 

Usually, the first issue that the court considers in any application to remove an attorney is whether there is a valid and subsisting power of attorney. If the answer to that question is yes, the court must then determine whether the behaviour of the attorney has been in the best interests of the incapable person.

The courts are rightly wedded to the principle that so long as a person has competently executed a power of attorney, they are secure in the knowledge that their affairs will be managed by a person in whom they trust. 

Canadian courts have held that there must be strong and compelling evidence of misconduct or neglect on the part of an attorney before a court should ignore the clear wishes of the grantor and terminate a power of attorney. 

Somewhat complicating the fact is that sections 22(3) & 55(2) of the Ontario Substitute Decisions Act, state that a court should not appoint a guardian for either property or personal care "if it is satisfied that the need for decisions to be made will be met by an alternative course of action that does not require the court to find the person to be incapable… and is less restrictive of the person's decision making rights than the appointment of a guardian". Subsisting powers of attorney meet those requirements. 

What then constitutes strong and compelling evidence? Hammond (Re) (1999), 25 E.T.R. (2d) 188 (Nfld. S.C.T.D.) (no link available) is a leading decision. The court held that there was insufficient evidence to substantiate allegations of misconduct. According to Hickman J., there was no evidence that the attorney for property had acted in a manner which was detrimental to the incapable person. The court therefore dismissed an application to have him removed. 

Thanks for reading. Ciao

Justin




The Golubchuk Case and the Health Care Consent Act - Hull on Estates #123

Listen to the Health Care Consent Act.

This week on Hull on Estates, Megan Connolly and Sean Graham review the Golubchuk case out of Manitoba and discuss the Health Care Consent Act of Ontario.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

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Deductions from Compensation - Hull on Estates and Succession Planning Podcast #125

Listen to Deductions from Compensation.

This week on Hull on Estates and Succession Planning, Ian and Suzana finish up the discussion on the question of accounting by reviewing deductions from compensation and briefly sum up the procedure of the passing of accounts.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

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Interim Cost Awards

Welcome to my week of blogs.

An issue that can crop up in estate litigation is whether a party is entitled to interim payment of costs payable out of the estate.  The reason for such an order is to fund litigation, such as a will challenge, out of the largesse of the estate.

The court has the discretion to order the interim payment of costs pursuant to Section 131 of the Courts of Justice Act.  A number of cases have addressed the interim payment of costs, including Waese v. Bojman as well as Zhao v. Ismail Estate (Trustee of) (link not available).  Both decisions recognize the court’s inherent jurisdiction to award interim costs in a proceeding, including estate actions.

However, the exercise of the court’s discretion is limited to exceptional cases and the court has generally held that it ought to be narrowly applied.  This is especially true when the court is being asked to essentially pre-determine an issue in addition to being asked to provide funding for anticipated legal costs.  The question to be posed by the court is whether a party can establish that a case of sufficient merit is being presented to the court and whether the party is genuinely in financial circumstances which, but for interim payment of costs, would preclude the party from pursuing or defending litigation.

As with any exercise of judicial discretion, the facts are crucial and how those facts are marshalled and presented to the court may carry the day.  Proper evidence and complete and financial disclosure is required.  However, even where an interim payment of costs is allowed, the court is likely to impose terms and require costs to be paid out in stages based on the progress of the litigation.

Thanks for reading.  A demain.

Justin

 


The Power of the Public Guardian and Trustee

Last night, I overheard a distressed woman confiding to a friend about a relative who was declared incapable of managing her property. The Public Guardian and Trustee (“PGT”) had stepped into her shoes to take control and to care for her property. This case peaked my curiosity, so I went home and did some research on this topic. 

Pursuant to Section 15 of the Substitute Decision Act (“SDA”), the PGT can be declared a person’s statutory guardian of property where a certificate is issued under the Mental Health Act (“MHA”) certifying that a person who is a patient of a psychiatric facility is incapable of managing property. Whenever a patient is admitted to a “psychiatric facility”, as defined by the MHA, a physician examines the patient to determine if he or she is capable of managing property. If the physician determines that the patient is not capable of managing property, then he or she must issue a certificate of incapacity. The certificate is subsequently sent to the PGT. As a result, Section 15 is triggered and the PGT steps in as the statutory guardian without any procedural requirement.

Pursuant to Section 16 of the SDA, the PGT can be declared a persons statutory guardian of property where a person requests an assessor to perform an assessment of either their capacity or another person’s capacity. This assessment is done with the view of determining whether the PGT should become the statutory guardian’s of the property. If a person wishes to request that an assessor perform an assessment of another person’s capacity, the person requesting the assessment must: (i) have reason to believe that the other person may be incapable of managing property, (ii) have made reasonable enquiries and have no knowledge of the existence of any attorney under a continuing power of attorney, and (iii) have made reasonable enquiries and have no knowledge of any spouse, partner or relative of the other person who intends to make an application for the appointment of a guardianship of property.

Thank you for reading and I hope my blogs added extra flavour to your favourite morning beverage. 

Rick Bickhram

Who Has Standing to Bring a Will Challenge?

As I am sipping on my coffee this morning, I am thinking to myself, who can commence a will challenge? 

A will challenge can be commenced pursuant to 75.06(1) of the Rules of Civil Procedure. Rule 75.06(1) is a procedural remedy that permits any person who appears to have a financial interest in an estate to apply for directions or move for directions in another proceeding.   This begs the question, who is considered to have a financial interest in an estate? This issue was addressed in the Ontario Superior Court (Divisional Court) decision of Smith v. Vance.

In Smith, the Deceased died on October 27, 1995, leaving a will dated January 5, 1994 which named the applicants as the estate trustees.   A notice of objection was filed by three individuals who were cousins of the deceased through marriage. The objection was subsequently struck by the Honourable Justice Perras during the motion for directions on the grounds that the objectors did not have a financial interest in the subject-Estate. In this hearing, the objectors appealed this decision.

The objectors asserted their financial interest in the Estate based on their close relationship with and their physical and financial assistance for the deceased. There was also an earlier destroyed will in which the objectors were named beneficiaries. Finally a letter was allegedly written by the deceased wherein she acknowledged that the objector will have an interest in her estate.

The court acknowledged that a financial interest is not defined in the Rules of Civil Procedure. In such cases, words should be taken by its natural meaning. Black's legal dictionary defines financial interest as an interest equated with money or its equivalent. The court held that claimants must do more than simply assert an interest. They must present sufficient evidence of a genuine interest and meet a threshold test to justify inclusion as a party. The interest need not be conclusive evidence at that stage but must be evidence capable of supporting an inference that the claim is one that should be heard. 

If the evidence offered by an objector is capable of supporting an inference that the claim raises a genuine issue, and thus is one that should be heard, the objector is entitled to standing and should be granted permission to be added as a party. The appeal was allowed and the order by the Honourable Justice Perras was set aside.

I hope you had fun reading today's blog. Until tomorrow,

Rick Bickhram

OH NO, the Residual Gift Has Lapsed. Now What?

Yesterday, I considered the issue of failed bequests and devises, however I was left scratching my head when I considered the issue of residual gifts that have failed. As I considered yesterday, Section 23 of the Succession Law Reform Act, does not apply to failed residual gifts. So, what happens to a failed residual gift?

As I dig deeper into the issue of failed gifts, I have learned that there is a presumption against intestacy. The presumption is consistent with the golden rule, which was described by Lord Esher M.R. in Re Harrison (1885) 30 Ch. D. (C.A.). The golden rule states when a testator has executed a will in solemn form it is presumed that he did not intend to die intestate when he has gone through the form of making a will.

The presumption against intestacy is also apparent in our statutes as the "anti-lapse provision" of the Succession Law Reform Act could be utilized to save a residual gift if the residual beneficiary was a child, grand-child, brother or sister of the testator and the pre-deceased beneficiary died leaving a spouse or issue who survived the testator.

However, what happens in a situation where the anti-lapse statute cannot be used? What will a court be likely to do? In such a scenario, the court is likely to look at the subject-Will to determine whether they can gather any evidence of the testator’s intention that would suggest an intention to avoid intestacy.

In Mladen Estate v. McGuire, the courts held that in determining whether there is an intention in the Will that is contrary to the general rule (a lapsed residuary gift passes on intestacy), the court is not limited to the four corners of the Will, rather the court can sit in the “testator’s armchair”, assume the knowledge the testator had with respect to the extent of his or her assets, the size and makeup of there family and the relationship to its members, so far as such things can be ascertained by the evidence and in this way, determine and give effect to the testator’s intention.

Until tomorrow,

Rick Bickhram

Does a Lapsed Gift Fail?

There is the view by some that issues surrounding the interpretations of Wills can be mind-numbing.  From time to time I tend to enjoy dusting off my book of consolidated estate statutes and reviewing some of the basic tenets of estate law, which makes our area of practice so dynamic.


The issue of a failed gift is a common subject in the context of will interpretations. The Ontario Legislature has considered failed gifts in sections 23 and 31 of the Succession Law Reform Act.


In essence, Section 23 states that unless a contrary intention appears in the subject-will, when a devisee or legatee predeceases the testator, the failed gift falls into the residue of the testator’s estate. 


Section 31 is commonly referred to as the "anti-lapse provision."  Section 31 prevents devises or bequests from failing by virtue of the devisee or legatee predeceasing the testator. In such a scenario, a gift is saved if the devise or bequest was left for a child, grand-child, brother or sister of the testator and the pre-deceased devisee or legatee died leaving a spouse or issue who survived the testator. If these conditions have been met, the devise or bequest will not fall into the residue, however it will take effect as if it had been made directly to the spouse or issue of predeceased devisee or legatee. 


Thank you for reading,


Rick Bickhram

 

 

 

 

 

Calculating Compensation - Hull on Estate and Succession Planning #124

Listen to Calculating Compensation

This week, Ian and Suzana discuss the number of emails they received last week about cross-reference analysis and compensation. Ian references 5 cases that are important to this subject:

1. Logan vs Laing - Ontario Court of Appeal
2. Toronto Railway Trust
3. Re. Knoch (1982)
4. George William Trust
5. Re. Jeffrey


They explain and continue talking about calculating compensation and how to audit the claim for compensation.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

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Settlement Issues - Hull on Estates #122

Listen to Settlement Issues

This week on Hull on Estates, Paul Trudelle and Christopher Graham talk about settlement issues - considerations that you have to take into account and the potential implications of not settling.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

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Blogging, Virtual Law Offices and ... Fly Fishing?

Hard as I tried, I was unable to find any noteworthy connection between these things!  But as I cast my fishing rod yesterday out in my favorite Bay in Prince Edward Island (I've been working from my summer cottage the past couple of weeks), I marveled at how accessible technology has made working away from what we've all come to define as the traditional "office".  This was nicely summed up last year by lawyer Rob Hyndman on his blog entitled "Silence of the Clams" (a favorite of mine).

While I'm on the issue of working from home, a recent article published in law.com covers the story of lawyer and entrepreneur Craig Johnson, who recently founded a virtual law office in California.  The new firm is named Virtual Law Partners.  As the headline of the article states; "no offices, no associates, no really".  The move away from the traditional "bricks and mortar" law office model hopes to offer more life/work balance, the reduction of overhead fees, and more competitive fees for the client.

But is this really a new direction for law firms, and will it ever replace the concept of the traditional law firm?  Comments in the article suggest that while the Virtual Law Partners model may work in certain cases (i.e. smaller firms and fewer lawyers), it is not the next "new" thing.  Larger law firms may still require the heavier infrastructure of the traditional office structure and, in my view, still no technology can improve on the benefit of a face to face meeting with a client in certain critical situations.

However, the flexibility that advancements in technology and these new business models can offer to lawyers juggling the demands of practice with families and other life priorities cannot be underestimated.  Clients can be served more efficiently, and lawyers can maintain more control over how and when they choose to work.  Looks like that sums up my blogs for this week - the fish are jumping and its time to grab my fishing rod.  Wish me luck!

Sarah Hyndman Fitzpatrick