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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Retired professor Fred Westfield was 12 years old when he last saw his uncle, Walter Westfeld, a renowned art collector.  Two days later came Kristallnacht, or the Night of Broken Glass, on November 9, 1938.  Kristallnacht was a coordinated attack on Jewish people and their property during which nearly 30,000 Jews were arrested and deported to concentration camps.  Walter was arrested by the Nazis for trying to move his art work to the United States and the Nazis auctioned hundreds of pieces of his art to pay his fine.

Four years ago, while doing a web search, Fred Westfield discovered that the Boston Museum of Fine Arts was looking for Walter's descendants because they had in their possession "Portrait of a Man and a Woman in an Interior" by 17th century Dutch master Eglon van der Neer.  The museum suspected that the portrait had once been owned by Walter, and had been illegally sold by the Nazis. 

Now 82, Fred Westfield and his family are suing the German government over his uncle's extensive art collection that had been seized by the Nazis and sold at auction during World War II.

According to The Associated Press, the lawsuit is unusual because 'it is seeking damages for lost art rather than the return of items that once belonged to Holocaust victims.'  Generally speaking, previous cases have generally sought to have the art returned to the family's estate from current owners.  Under the Hague Convention, Germany has 3 months to accept or reject the lawsuit.

Fred Westfield estimates that the 400 or so works of art would be valued at tens of millions of dollars today.

David M Smith

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On Tuesday of this week, I blogged on s.35.1 of the Substitute Decisions Act.  This section of the Act provides that a guardian of property for an incapable person has an obligation to preserve property that is subject to a specific legacy in the incapable person's Will unless that property must be used to fund the needs of the incapable person.  As I noted, litigation can ensue on the death of the incapable person if a disappointed beneficiary is not in receipt of his or her legacy.  The disappointed beneficiary must demonstrate that the guardian knew or ought to have known the contents of the incapable person's Will.  While the Act itself  provides an imperative in this regard, it is not at all clear what other evidence would be admissible.  Specifically, the notes and records of the solicitor who drew the incapable person's Will may shed some light on whether the guardian knew of the contents of the Will.  The question, of course, is whether such solicitor's notes are privileged.

In a conventional will challenge, little thought is given to the potentially sticky issue of privilege.  Indeed, solicitor's notes and records are produced as a matter of course when the validity of a Will is challenged.  But when the notes are sought, not to challenge the Will but, rather, to establish the knowledge of someone other than the testator as to the contents of the Will, it is not at all clear whether privilege would be waived by the Court.  

As a corollary to the entitlement of a beneficiary under a Will to make enquiry under s.35.1, a recent decision which Megan Connolly blogged on supports the obligation of a guardian (who is also an estate trustee) to account to such beneficiaries.

David M. Smith

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As a former manager at an assisted living facility, I was often (too often) witness to the devastating aftermath of falls in the elderly.  As an administrator, the direct effects of a fall are obvious and measurable.  According to the Centers for Disease Control and Prevention, over 1.8 million Americans over age 65 are injured annually in falls.  A recent New York Times article indicated that 433,000 of those will be admitted to hospital and 15,800 will die as a direct result of the fall.  In Canada, estimates suggest that 1 in 3 elderly people living in the community will experience at least one fall a year.  The Canadian Institute for Health Information (2002) reports that 75% of in-hospital deaths were due to injuries from a fall.

What are far more difficult to track and quantify are the indirect consequences of a fall, from which many elderly also do not survive.

Post-fall, in the hospital environs, an aged person is subject to the complications of the fall.  They are immobilized in bed, usually catheterized, and are prone to infection, muscle atrophy and pneumonia, which extends the length of their stay in the hospital (generally 11-14 days according to Health Canada).  When they are eventually discharged, whether to their own home or to a care facility, they are terrified of falling again.  A downward spiral of loss of confidence, social isolation, nutritional risk, psychological fragility, and a depressing awareness of their vulnerability often ensues.  Any underlying co-morbid health conditions (diabetes, respiratory illness or cardiac conditions) will dramatically accelerate this downward spiral.

By the year 2031, one in five Canadians will be over the age of 65, compared with one in eight in 2001, and the number of people over the age of 80 will double over the same time frame (The Demographic Time Bomb).  The increasing number of falls in the elderly is an emerging public health crisis and thus fall prevention initiatives and more facilitative access to community-based supports for the elderly must be critical components of provincial and nationwide health care planning.

Jennifer Hartman (Guest blogger)

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Listen to Direct and Indirect Approaches to Estate Planning - Part 1

This week on Hull on Estate and Succession Planning, Ian and Suzana start a discussion on their global philosophy toward the estate planning process. There are direct and indirect approaches to capacity and estate planning and in this episode, Ian and Suzana explore these approaches as they pertain to the choice of attorney.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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Listen to The Concept of Ethical Wills

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss innovative techniques that add value to doing a will and powers of attorney. Specifically they discuss the concept of ethical wills and how they are different from a traditional will.  

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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Section 35 of the Substitute Decisions Act ("Act") states that "a guardian of property shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person's will."  And under s 33.1 of the Act, a guardian of property needs to make reasonable efforts to determine "whether the incapable person has a Will" and, if so, "what the provisions of the Will are."

Under the authority of these sections of the Act, a beneficiary of a specific testamentary gift can legitimately make enquiry into the actions of the guardian who, more often than not, is also the estate trustee under the Will.  Take, for instance, a demonstrative legacy of a bank account at a specific financial institution.  If the account is no longer in existence at the date of death, the legacy will usually be subject to ademption: the gift has failed because the account was closed before the date of death.  But what if the account was accessed by the guardian either: (i)  for his own purposes or (ii) for the care of the incapable person when there where other assets available to fund the care of the incapable person?  In such a situation, the beneficiary of the account under the Will may seek redress. 

To prove his or her case, the beneficiary will seek an accounting from the guardian in order to ascertain to what extent his or her beneficial entitlement was wrongfully encroached upon in breach of the Act.  Given the imperative under s. 33.1 of the Act, it questionable whether the guardian/estate trustee could ever  successfully argue ignorance of the terms of the Will as a defence to such claim.

 David M. Smith

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Exactly two hours and eight minutes after then-President John F. Kennedy was shot two cars ahead of him in a motorcade in Dealey Plaza, and exactly ninety-eight minutes after Kennedy was declared dead, Lyndon B. Johnson was sworn in as President aboard Air Force One.  This past weekend marked the 45th anniversary of the JFK assassination, which prompted me to scour the internet for some details surrounding that transfer of power.

Twenty-seven people were in the 'living room' of Air Force One at the time of the swearing-in, many of whom were in tears during the ceremony.  Federal District Judge Sarah T. Hughes, who had been appointed to the bench by Kennedy two years earlier, became the first woman ever to swear in a President.  Johnson stated the following: "I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.  So help me God."  The plane was not airborne at the time of the swearing-in; instead it was on the ground at Love Field Airport in Dallas.  Johnson's first order as President took place minutes later.  "Now," he said, "let's get this thing airborne."

Using the aircraft's radio telephone, Johnson made a couple of phone calls; one to Mrs. Rose Kennedy and one to Nellie Connally, wife of wounded Texas Governor John Connally.

The plane headed to Andrew's Air Force Base, where it was met by Robert Kennedy, who met Jackie Kennedy at the door and helped her to the ground.  Johnson and Lady Bird then boarded a helicopter for the seven minute flight to the White House where he received phone calls from former Presidents Dwight Eisenhower and Harry Truman who both expressed their confidence in him and pledged their assistance during 'this transitional period'.

David M. Smith

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The 11^th Annual Estates and Trusts Summit was held in Toronto on November 19 and 20, 2008. This excellent program featured a number of experienced practitioners speaking on a broad array of estates and trusts topics.

Topics (and speakers) included:

• Family Law Update (Karon Bales)
• Shareholder Issues – The Family Business in Succession Planning (Frank Archibald)
• Dealing with Insolvent and Bankrupt Estates (Barry Corbin and Robert Klotz)
• The Non-Resident Factor in Estate Planning (Mary Anne Bueschkens and M. Elena Hoffstein)
• Update on the Trust and Estate Provisions in the Protocol to the Canada/U.S. Income Tax Treaty (Beth Webel and Jim Yager)
• New Strategies for Post-Mortem Tax Planning – The Eligible Dividend Rules and More (Heather Evans)
• Powers of Attorney and the Duty to Account – An Update (Liza Sheard)
• Powers of Appointment (Timothy Youdan)
• The Will is Not the Whole Picture - Integrating the Transfer of Wealth both Inside and Outside the Estate (Wendy Templeton)
• New Developments in Insurance and Estate Planning (Graham Carter)
• Update on Practice Directions for the Estates List (The Honourable Mr. Justice David M. Brown)
• Capacity and Other Issues in Power of Attorney and Guardianship Disputes (Jan Goddard)
• A Clinician’s Perspective on Assessing Testamentary Capacity and Related Capacities (Dr. Kenneth Shulman)
• Capacity Issues – The Perspective of the Hospital, Retirement Home and Group Home (Wendy Griesdorf)
• The Vulnerability of Pre-Death Gifts (Eric Hoffstein)
• The Scope of the Attorney’s Powers (Sender Tator)
• The Incapable Minor Turning 18 (Clare Burns)
• Remarks from the New Children’s Lawyer for the Province of Ontario (Debra Stephens)
• Marshalling the Evidence For and Against Capacity in a Will Challenge (Hilary Laidlaw)
• Short Circuiting the Frivolous Will Challenge (Hull and Hull’s Craig Vander Zee)
• Mediation of Capacity Issues – The Mediator’s Perspective (Felice Kirsh and Archie Rabinowitz)

If you were not able to attend, the seminar materials will be available from the Law Society of Upper Canada.

Thank you for reading,

Paul Trudelle

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Today is the final installment of my discussion of Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.).

After dismissing the will challenge on the basis of due execution, testamentary capacity and knowledge and approval, the court turned to the issue of undue influence. Despite the presence of suspicious circumstances, the court held that the challengers, not the propounder, had the burden of proving undue influence. However, while the son did not have the burden of disproving coercion, his evidence was to be tested against the preponderance of probabilities that rationally emerge out the all the evidence in the case.

The deceased was found to be vulnerable and dependant upon her son for all aspects of her existence. Conversely, the son was found to have an aggressive and domineering personality, both in general and with respect to his desire for absolute ownership of the family holding company.

The court found that the son was very caring of his mother. However, it did not accept his evidence on the issue of undue influence. The court asked a number of rhetorical questions as to why the mother would make the will that she did, despite the circumstances. The court concluded that that will was procured by the undue influence of the son.

The will was therefore found to be invalid.

Paul Trudelle

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Yesterday, I discussed Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.), and the finding of the judge that suspicious circumstances existed, placing the onus back on the propounder to prove testamentary capacity and knowledge and approval.

As to testamentary capacity, the court referred to the oft – quoted decision of Banks v. Goodfellow, and the test for testamentary capacity.

It noted that the capacity required to direct the distribution of one’s estate by Will is “modest”. To be of a sound and disposing mind and memory, a testator must:

1. be aware that they are making a will that takes effect on their death;
2. understand the nature and extent of the estate to be disposed of by Will;
3. be aware of those having a claim to the estate;
4. have no disorder of the mind.

The court reviewed the evidence of the plaintiffs and the witnesses (other than the son) as to testamentary capacity. The court was satisfied that on the preponderance of the evidence, the testator had the necessary capacity to direct the disposition of her estate by will as of the date of the will.

As to knowledge and approval, the court noted that a suspicious circumstances raised in the case required that the son, as the propounder of the will, prove that the deceased knew of and approved of the contents of the will. The court did not accept the evidence of the son to the effect that the deceased had to carefully read her will and discuss it with him on numerous occasions. Despite this, the court concluded that the deceased knew of the provisions of the will that she signed.

To this point, the will survived most of the challenges to it. Will the will be accepted to probate? Can it withstand the final challenge: undue influence? Tune in tomorrow.

Paul Trudelle

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Listen to Offers to Settle in the Context of a Will Challenge

This week on Hull on Estates, Craig Vander Zee and Bianca La Neve talk about offers to settle in the context of a will challenge. They explain the difference between a will challenge and civil litigation and discuss several examples of will challenge cases.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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Yesterday, I introduced the will challenge decision of Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.).

After disposing of the issue of due execution, the court turned to the doctrine of “suspicious circumstances”. The court referred to these Supreme Court of Canada decision of Vout v. Hay, where it was held that suspicious circumstances maybe raised by circumstances surrounding the preparation of the will, circumstances tending to call into question the capacity of the testator; or circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

Generally, the propounder of a will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity. However, upon proof that the will was duly executed, the propounder is aided by the rebuttable presumption that the testator knew and approved of the contents and had the necessary testamentary capacity.

The burden of establishing suspicious circumstances rests on those attacking the will. If evidence can be adduced which, if accepted, would tend to negative knowledge and approval or testamentary capacity, this burden is satisfied and the legal burden reverts to the propounder.

In Hix, it was the son who drafted the challenged will. The Court quoted from Vout v. Hay as follows:

“… if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.”

The court concluded that the son should never have agreed to draw the will for the deceased. The fact that he did in the circumstances “does more than raise suspicion; it cries out for it.”

Tomorrow: testamentary capacity, and knowledge and approval

Paul Trudelle

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 Listen to Will Challenge wrap-up and Power of Attorney Litigation

This week on Hull on Estate and Succession Planning, Ian and Suzana give a final comment on Will Challenge litigation and speak about their topic at the Canadian Conference on Elder Law in Vancouver; Power of Attorney Litigation.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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A recent case out of the British Colombia Supreme Court provides an excellent illustration and discussion of various grounds upon which a will can be challenged.

In Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.), the deceased was survived by a son and two daughters. The deceased, the son and the two daughters had varying levels of shareholdings in a holding company.

In a prior will, the deceased left her estate to her three children, equally. In a will drawn January 11, 2004, the deceased left her estate to her three children equally, on the condition that the two daughters transferred their shareholdings in the holding company to the son. The deceased died on June 1, 2006 at the age of 90. The daughters challenged the validity of the will, and the court considered the validity of the will from a number of perspectives.

The court first considered the issue of due execution of the will. The formal requirements necessary to execute a valid will are set out in the relevant legislation. While the court was not prepared to accept the evidence of the son with respect to the execution of the deceased’s will, it did accept the evidence of one of the two witnesses to the will. The court was satisfied that the will was signed by the testator in the presence of two witnesses who were present at the same time and who subscribed the will in the presence of each other and the testator.

Court concluded that the will was validly executed. This aspect of the will challenge was rejected.

More tomorrow.

Paul Trudelle

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Section 3 of the Estate Administration Tax Act, 1998, requires an applicant for a Certificate of Appointment of Estate Trustee to make a deposit in an amount equal to the tax that will become payable under the Act.  There is an exemption in subsection 4(2) of the Act, which grants a judge discretion to allow the "estate certificate" (as defined by the Act) where the judge is satisfied:

(a) that the estate certificate is urgently required;

(b) that financial hardship would result from not issuing the estate certificate before the deposit is made; and

(c) that sufficient security for the payment of the tax under this Act has been furnished to the court.

This provision was considered in Re Ethier Estate (2000), 35 E.T.R. (2d) 219.  The applicant's request for a Certificate of Appointment of Estate Trustee With a Will based on only partial payment of the appropriate deposit was refused.  First, the applicant did not supply any evidence to show what efforts were made to obtain the needed funds.  Subsection 4(2) "offers last-resort relief to an applicant", who must establish why he is unable to advance the entire deposit to the estate, which may include taking out a loan.  But mere convenience for the applicant is not a relevant consideration. 

Second, "urgent" means "pressing or requiring prompt action".  This element must be established on the evidence, and any delay in bringing the motion must be explained in the application material.  In Re Ethier Estate, the applicant failed to explain a 4 month delay.

Third, "financial hardship" is not merely financial loss or privation, it involves severe financial loss or privation.  This must be established on the evidence. 

Re Ethier Estate describes a high bar for an exemption from the deposit requirement, or even a partial exemption. 

Enjoy the weekend,

Chris Graham

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Regardless of the wisdom of the federal government's fateful decision to tax income trusts, its impact on the trust sector has been profound.  Retail investors, corporate managers, lawyers and accountants, government tax departments: all are affected by this policy decision.  Trust lawyers, for instance, have certainly seen a vast potential pool of future work relating to the conversion to and operation of income trusts disappear.  

On the bright side, there will be a great deal of work relating to the restructuring (re-converting? de-converting? re-incorporating?) from income trusts back to business corporations.  This seems to be a trend, since the tax exemption that makes operating as an income trust more tax-efficient than a traditional corporation disappears in 2011.  A contemporary example is CI Financial Income Fund, which announced plans last month to return to a tradional corporate business structure (it converted to an income trust in 2006).  Other recent examples of de-conversions are Newalta Income Fund, which converted to a trust in 2003 and BFI Canada Ltd., listed on the TSX on Oct. 2, 2008, formerly BFI Canada Income Fund.

CI Financial also says that operating as a trust constrained its ability to make acquisitions, and it has just announced an ambitious plan to raise funds to that end.  It will not surprise any lawyer with experience in both corporate law and trust law that operating as a trust is more constraining than as a corporation.  According to a newspaper article, CI incurred $11 million in costs relating to its plan as well as restructuring costs. 

Keep your eyes off the stock ticker and enjoy the day,

Chris Graham 

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In the wee hours of Saturday night, on my umpteenth flight back from Asia this year, I couldn't help but ponder two things.  First, the recent collapse of the U.S./global financial system and greater economy compares poorly to what I have witnessed in Asia for years now.  But we still have the relative advantage of trust law to keep us prosperous, right?  Perhaps, but so does everyone else, or they're trying to develop it.  At least in theory, just about every major Asian jurisdiction purports to have some legal structure supporting the creation, operation and regulation of trusts.

Australian trust law is unsurprisingly advanced, being a fully English-speaking (sort of, anyway) Common Law jurisdiction.  The great former British colony and global trading port of Hong Kong boasts a highly-developed trust law framework based on the Common Law.   This legal system has been wisely preserved by the PRC, and is in the process of a major overhaul.  Mainland China itself has recognized the utility of trusts and passed its first trust statute.  Another former British colony, Singapore, sports a highly-developed trust law with a judiciary that pragmatically relies on Common Law developments from all jurisdictions to keep with the times.  Japan is characteristically inscrutable, but apparently recently revised its trust legislation.

Of course, it is probably incorrect to equate the mere presence of a legal structure with its widespread use.  Nevertheless, trust law is spreading, at least superficially, faster than zebra mussels.

The second thought in my mind was that a 14-hour flight, followed by 5 days of jet-lagged, dazed "vacation" on 12-hour time change, followed by a return flight just as jet lag from the away flight has worn off, followed by more jet lag from a 12-hour reverse, is not something that will be repeated any time soon.

Thanks,

Chris

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This week on Hull on Estates, Diane Vieira andRick Bickhram talk about the Family Law Act and division of property problems. They discuss determining net family property, quantifying the assets of the deceased  and making an equalization claim.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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Listen to Will Challenge Litigation - Part 13 [Audio Version Currently Not  Available]

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the five factors the court looks at when challenging a will.

1) Lack of testamentary capacity
2) Undue Influence
3) Due execution or properly executing a will.
4) Suspicious circumstances
5) Fraud

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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Primary and secondary wills are common enough situations for estates practitioners: one will for probate and the other for assets that can pass outside probate, to minimize estates administration taxes.  But what about situations with multiple wills requiring probate?

According to the October 8, 2008 endorsement of Mr. Justice Brown (court file no. 01-2725-08, no link available yet), where a testator makes 2 wills, each covering different assets, and each naming different executors, a local estates registrar can issue separate Certificates of Appointment of Estate Trustees to different executors limited to the assets referred to in each Will.

The endorsement closes with 2 "reminders" to applicants in multiple wills situations (I won't paraphrase):...

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Eighty years ago, at the height of the Great Depression, a wealthy Ohio businessman hid $182,000 in minted $50 bills in a wall in his house.  There it hung peacefully by a wire in a green metal lockbox, disturbed only by inflation.  A contractor discovered the money while tearing down the wall, and he honestly and very admirably informed the home owner. 

Unfortunately, things spiralled out of control.  First, the home owner and the contractor were unable to agree on a division of the money.  She offered the contractor 10%, he asked for 40%.  Then the story made it into Cleveland's local news, and the estate of Patrick Dunne, the guy who hid the money, got involved (Patrick Dunne had 21 descendants).  The dispute went to litigation. 

For various reasons, the home owner dropped her claim.  However, the county court probate magistrate ruled that $157,000 was clearly marked as Patrick Dunne's property and therefore was the property of his estate.  Of the remaining $25,000, the judge recommened the estate receive 83.3% and the contractor receive 13.7% - approximately $3,400. 

CBS News produced an interesting podcast of the legal issues, posted here.  More food for thought: $182,000 in 1930 is the equivalent of $2,384,341.68 according to the Bureau of labor Statistics inflation calculator.  Of course, some of the rare bills are worth up to $500,000 to collectors...

There are a lot of lessons here.

Have a great week,

Chris Graham

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Listen to Will Challenge Litigation - Part 12

This week on Hull on Estate and Succession Planning, Ian and Suzana clarify the distinction between claims of resulting trust and claims of constructive trust.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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George Webster appealed to the Ontario Court of Appeal from a summary judgment partially dismissing his claim for damages against the estate of Ken Thomson.  Webster v. Thomson, 2008 ONCA 730.

At issue was a painting by the American artist, Charles Russell, "Pirates of the Plains", which had been in the Webster family since 1931. Mr. Russell, who died in 1926, is apparently well known for his paintings of the "Old American West". The painting was very special to Mr. Webster who saw it as a link to his father who had originally acquired the painting. 

On September 29, 1982, Mr. Webster's mother sold the painting to Mr. Thomson, without Mr. Webster's knowledge, for $150,000. Mr. Webster asked Mr. Thomson if he could re-acquire the painting. Mr. Thomson proposed that if Mr. Webster sold him a painting he owned by Cornelius Krieghoff, Mr. Thomson would give Mr. Webster the opportunity to purchase the Russell painting after he died at the painting’s appraised market value. This proposal was contained in a letter that Mr. Thomson wrote to Mr. Webster. Mr. Webster accepted.

On August 25, 2003, Mr. Thomson sold the Russell painting for U.S. $5,600,000 without apparent regard to his agreement with Mr. Webster. In 2004, Mr. Webster commenced a legal proceeding against Mr. Thomson. Mr. Webster's claimed damages for breach of contract in the amount of $4,000,000 and punitive damages in the amount of $10,000,000. After Mr. Thomson died in June 2006, the action was continued against his estate.

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A recent decision by Brown, J. heralded good news for the Estates Bar. 

The applicant wished to issue a guardianship application under sections 22 and 55 of the SDA in the Toronto Region Estates Office. The guardianship application was in respect of her son who was injured in a car accident in 1997. The applicant and her son lived together in Bradford, Ontario. The applicant’s counsel wrote to Brown J. asking for directions as to whether the application could be commenced in Toronto.

In his Endorsement [not yet reported], Brown, J. noted that an informal policy existed in the Toronto Region Estates Office that it would only accept applications under the SDA where the supposed incapable person resided in Toronto notwithstanding the fact that no statute or rule imposed such a limitation. In fact, Rule 13.1.01 of the Rules of Civil Procedure provides that a “proceeding may be commenced in any court office in any county named in the originating process” unless a “statue or rule requires the proceeding to be commenced, brought, tried or heard in a particular county.”

Brown, J. noted that neither the SDA nor any statute or rule specified the place of commencement for an application under the SDA. Brown, J. therefore held that the applicant was permitted to commence her guardianship application in Toronto and directed the Toronto Region Estates Office to accept her application for issuance.

With this decision in hand, it is now possible for counsel to commence a guardianship application where they see fit and as appropriate. This is good news indeed.

Justin

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On Monday, I blogged on proving a lost or destroyed will in court:  If an original will which was last traced into the possession of the testator cannot be located following the death of the testator, a rebuttable presumption arises that the testator destroyed the will with the intention of revoking it.

However, there is an additional or complicating factor worth considering. What happens when the testator regrettably looses his/her mental capacity to make, change, or revoke a will? In these circumstances, where a party alleges that the will was revoked by being destroyed by the testator when of sound mind, the burden of proof rests on the party alleging the revocation. The presumption of revocation does not apply. The party alleging revocation must satisfy the court that it is more probable than not that, while of sound mind, the testator revoked the will by destruction. 

Rebutting the presumption of revocation or proving that the testator revoked his/her will by destruction where testamentary capacity is an issue can be difficult. It is obvious that proof of a lost or destroyed will is fact driven. No matter what position a party may advance in court, they will have to ensure that the proper evidentiary base is established to carry the day.

Thanks for reading.

Justin

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Listen to  Dealing with Estate Issues That Arise Immediately Upon Death

This week on Hull on Estates, David Smith and Natalia Angelini talk about the duties an estate trustee he or she is charged with from the moment of a testator's passing. Duties include locating the will, making funeral arrangements and being responsible to see the intentions of the testator preserved.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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It was with considerable sadness that the legal community marked the passing of Charles Dubin last week. In its obituary, The Toronto Star called him "a legal giant" and a "national icon" and it was not alone. Charles Dubin was widely acknowledged as possessing a keen legal mind. He was also a superlative lawyer and an outstanding judge. He was a “man of the law”.

Charles Dubin was from a different era where great advocates seemed to tower over the profession (there were also a lot less lawyers and it was most definitely a closed shop). As with many of his generation, he represented both civil and criminal clients. Charles Dubin represented prime ministers and football players, bookies and major corporations. He was counsel to The Toronto Telegram and represented The Toronto Firefighters as well as Ontario Hydro's employees. He also defended 15 capital murder trials before capital punishment was abolished (a daunting brief). 

Charles Dubin was called to the Bar in 1944. In 1973, he was appointed to the Ontario Court of Appeal. In 1983, he released a report on improving procedures at The Hospital for Sick Children after nurse Susan Nelles was cleared of killing four babies. He is perhaps most famous for his inquiry into the use of drugs in Canadian amateur sport following the disgrace of Ben Johnson at the Olympic Games in Seoul. In 1990, he became the Chief Justice of Ontario. He retired in 1996 and returned to private practice – a true champion of the law to the very end.

Charles Dubin will be missed by the profession.

Justin

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Welcome to my week of blogs.

The perennial problem of a lost or destroyed will is not new. Much law has been written and effort spent on the subject. I am also counsel in a lost will proceeding that is a real bugaboo. I therefore thought that it would be worthwhile to cover off the basics.

In terms of procedure, Rule 75.01 states that the validity and contents of a will that has been lost or destroyed may be proven on an application by affidavit evidence, without appearance, where all persons who have a financial interest in the estate consent to the proof. Where consent proves fleeting, the court may give directions under Rule 75.06. Rule 75.06 states that any person who appears to have a financial interest in an estate may apply for directions as to the procedure for bringing any matter before the court (including proving a lost or destroyed will).

With respect to the substantive law, when a will has been shown to be last in the custody of the testator and cannot be found at his/her death, a presumption arises automatically that the testator destroyed the will with the intention of revoking it (animo revocandi). The presumption can be rebutted on sufficient evidence. Suspicions alone are not enough to rebut the presumption; the presumption must be rebutted by facts. 

The presumption will be more or less strong according to the control the testator had over the will, the character of the testator and his relation to the beneficiaries, the contents of the testamentary document, and the possibility of its loss being accounted for otherwise than by intentional destruction on the part of the testator. Only in very strong cases have the courts permitted the presumption to be rebutted. The courts have emphasized that the burden on the person who is trying to rebut the presumption is "very heavy". For a good summary of the law, see Wagenhoffer v. Wagenhoffer Estate, [1986] S.J. No. 8 (Sask. C.A.) [link not available].

Justin