Listen to Will Challenge Litigation – Part 8
This week on Hull on Estates, Ian and Suzana discuss corporate issues and implications during a will challenge. Issues of testamentary capacity and undue influence can become extremely complex questions to investigate in a corporate inquiry.
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Will Challenge Litigation Part 8 – Hull on Estate and Succession Planning – Podcast #133
Posted on October 7, 2008 by Hull & Hull LLP
Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.
Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode 133 of our podcast on Tuesday, October 7th, 2008.
Ian Hull: Hi, Suzana.
Suzana Popovic-Montag: Hi there, Ian. How are you?
Ian Hull: Just great.
Suzana Popovic-Montag: That’s good. Just a quick reminder to our listeners to feel free to call and leave us any comments you might have on our call-in line which is 206-457-1985.
Ian Hull: And of course, look to our blog at email@example.com and an e-mail, we would welcome any comments through firstname.lastname@example.org.
So, Suzana, as we are discussing the Will challenge process and you say, listening, and we’re also on the video as well, let’s spend some time today talking about a branch of what we see commonly arising in Will challenges, and that is, what is the corporate implications and what sort of corporate issues can arise?
Suzana Popovic-Montag: And this really is a timely issue, and I think one that we see in many files, just by virtue of the fact that our estates tend to be quite large these days. And as part and parcel of the planning during a lifetime, there is going to often be a corporate component.
Ian Hull: And that corporate component also, in Ontario, is very much highlighted because we have the primary and secondary Will regime, where assets are being placed, corporate assets are typically being placed in the secondary estate. So we have to be alert to the fact that a lot of estates are going to have a corporate element to it. And what we will tell our clients often is, sit back and help us understand the corporate machinations. And they’ll look at us sort of strangely and say, well what does that have to do with testamentary capacity? Or what does that have to do with undue influence? How can that have any impact on either upholding a Will or setting aside a Will? And the answer to that is fairly straightforward. And that is this: that an element of testamentary capacity is to know and understand the nature and effect of your dispositions. What does that mean? Well, that means that typically, the person who undertakes the Will and estate plan has to understand what they’re doing. Now the case law, without getting too intricate in it, gets very close to the line. It talks about whether or not you knew and understood, but it doesn’t expect the testator to have every single aspect of the estate plan understood at every level of minutiae.
Suzana Popovic-Montag: And the reason, of course for that, is because these things tend to be complicated, and for a lay person, certainly we can set up corporations and have these kinds of arrangements put in place. But again, without understanding the minutiae, because we’re relying on professionals to help us with that part of the process.
Ian Hull: And so the Courts have historically said, if you want to develop a complex estate plan, as long as you understand the concepts, you understand generally what’s going on, the Courts have typically been fairly lenient and they won’t go so far as to suggest that the individual didn’t know and understand. So we say to our clients, though, having said that, the problem is this: what if you truly didn’t know and understand? And what if the corporate machinations are so complex, or, that the very fundamental effect of the corporate dealings had such a dramatic tax impact on death that you didn’t understand that? Does that drive into this possibility that the Will is not valid? And that is really what we want to highlight today. And the short answer is, yes. The Courts will start to say, well, wait a minute. Did the deceased understand that by putting a corporation, establishing a corporation this way, would result in a tax over here that would then affect another beneficiary that maybe that deceased didn’t understand. And a classic example is that, in Ontario and Canada throughout is that, RRSPs, and that illustration really demonstrates what a knowledge and approval could be in a situation like that.
Suzana Popovic-Montag: And the key of course, is the fact that you can’t give something away that you don’t own, but you need to know what you own before you can decide how you want to give it away and to whom. And so to be able to demonstrate that this was, in fact, the case, is maybe quite important in these situations. And of course, that just leads me to think to the evidential difficulties that arise in proving ownership or what someone thought they owned or understood they owned. And again, that comes back to some of our previous discussions, Ian, where that is a difficult thing to establish in some circumstances, so we’ve got to be ready for it.
Ian Hull: Absolutely. And where these things start to get balled up and mixed up is that if someone does a classic estate freeze, where they have a company and they’ve developed it, and they get to the point where they say we want to freeze the tax liability there and then we want to put all of the growth into the hands of my children, and let them enjoy the growth. That’s the classic estate freeze, and we won’t get into great detail today, but one worthy of its own podcast or two. That scenario may well not have been fully understood by the deceased. The deceased may not have understood that impact and then, it might have an impact on and drill down on this whole question of whether or not he knew and understood the nature and effect of his dispositions.
Suzana Popovic-Montag: And in the right circumstances, it really can have a snowball effect, and that’s something that we certainly will try to keep in mind when we’re talking with clients about these kinds of situations.
Ian Hull: So it seems to me that we’ve tried to answer hopefully the question of, well, why are you bothering getting into an inquiry which could be cumbersome, it can be voluminous. I mean, you talk to people who get into these situations and they’ve established a corporation 30 years ago. You’re looking at the possibility of having to look at corporate records over 30 years. You’re looking at the possibility of talking to the accountant about corporate records over 30 years. Now that may be an extreme example, but if you have multiple corporations and so on, it adds a layer of complexity, when we talked about that intense investigation stage. This adds a layer of complexity. And it comes back to this point that often our clients will say, give me a budget. Tell me how much this is going to cost me.
Suzana Popovic-Montag: That’s right.
Ian Hull: And it’s very difficult when you have corporations. So we will tell our clients: (a) we think we have to look into it, at what level depends on each fact of the case; and (b) we’re not going to promise you that a quick review of the minute book is going to be sufficient. Because it can undermine the whole question of testamentary capacity which is the cornerstone of a significant percentage, I would say higher than 80% of Will challenges, are fundamentally based on the allegation that the deceased did not have testamentary capacity. We’ve talked about the other prongs of attack, but the testamentary capacity tends to be the strongest and the most forcefully pursued element, and so the corporate aspect of it is an important element as well.
So, during our next podcast, what we’re going to talk a little bit about and we’re going to kind of go sideways, I think, but I think it’s a worthwhile time to, as we set up the types of claims that can be made and we talk about the types of claims that can be made. We’re going to talk about some of the claims that are made concurrent, or at the same time as a Will challenge, which, the old adage is, throw mud at the wall to see what sticks. Well, we don’t really typically, we don’t encourage our clients to throw mud at the wall and see what sticks strategy, because sometimes that bounces back. But you also want to consider what other claims and we’re going to talk about quantum meruit claims, we’re going to talk about proprietary estoppel claims, things like that, that add more sauce to the gravy.
Suzana Popovic-Montag: That’s great, Ian, I look forward to our next podcast. Just a quick reminder, of course, to our listeners, please feel to call and provide us with any feedback or any comments you might have, on either the video format or the audio portion of our discussion today. Our number is 206-457-1985.
Ian Hull: And of course as I remember, please e-mail us at email@example.com.
Suzana Popovic-Montag: Thanks very much, Ian.
Ian Hull: Thank you.
You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
To listen to other Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.