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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Everyone knows that you should make a list before going to the grocery store. If you do not, you will inevitably forget some essential basic that was not interesting enough to remember. It will be the very thing you went to the store for in the first place.

The same thing is true of checklists in your practice. Save time and angst with a comprehensive checklist that sets out the steps and considerations required – even on the simple, straight-forward files. The first time you do something, it is a learning experience. The next time is quicker and easier if you put your learning to good use. Do a post mortem: Write down the steps and think about what you could have done better, faster, more efficiently. What did you forget? What would you add? Follow your list to breeze through the next similar matter. Make lists once and, with a little maintenance, benefit for many files to come.  Have a look at the ILA checklist by Philip Epstein on the LawPRO website to get the general idea.  

If you are still not convinced, check out this article in the New Yorker about the sustained ability of simple checklists (wash hands, use sterile things) to virtually eliminate infection and dramatically reduce death rates and costs in intensive care units. Saving 1,500 lives and $175M in 18 months is nothing to sneeze at. 

If it works for doctors, it can work for lawyers, proving that anyone without an eidetic memory stands to benefit from a checklist. Since the vast majority of identified eidetikers are preadolescent children, chances are slim that you fit into this category. Total recall is not a learned skill and, even if it was, isn’t just making and following a checklist a whole lot easier?

Next on your "to do" list:  Have a great weekend!

Sharon Davis

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As previously blogged on by Paul Trudelle, the evidence required for the court to properly consider whether an administration bond should be dispensed with was clearly set out by Brown J. in the Re Henderson case 2008 CanLII 69136. But what if the answer is no and you must post a bond?    

One option is to go to the Ontario Lawyers Probate Bond Service. It was designed by Gamble & Associates Insurance Ltd. with their over 50 years experience in providing Probate Bonds. There is a simple 7-step process that walks you through the Fiduciary Bond Application and asks questions that you can fill in quickly and easily. There is 24-hour turnaround in most cases. The system was made possible through close association with The Guarantee Company of North America, a well-respected licensed surety company.

Click here for a list of the Gamble & Associates offices. If there is a bond coming soon to an Estate Trustee near you, you can give them a call to set up an account and access the service online.

For more information on administration bonds see Natalia Angelini’s paper, The Tricky Business of Administration Bonds, presented at Hull & Hull LLP’s Estate Trust and Capacity Law Breakfast Series. 

Thanks for reading!

Sharon Davis

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Listen to:  Capacity Assessments - Hull on Estates #173

This week on Hull on Estates, Diane Vieira and Jonathan Morse discuss capacity assessments, the requirements for assessors under the Substitute Decisions Act, and who assesses capacity under what circumstances.

If you have any comments, please email us at hull.lawyers@gmail.com or you can leave us a comment on our blog.

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Ever wonder if (or wish that) you might be the lucky beneficiary of a hefty life insurance policy left to you by some benevolent benefactor? Well now you can find out if your wishes have come true. 

A life insurance policy locator service created and maintained by MIB Solutions Inc. allows you to search 170 million records to see who may have named you (or your client) as a beneficiary. The database includes policies collected from virtually every North American carrier involved in life insurance. The hit rate is 30%. An executor, administrator, a surviving spouse or other relative eligible for appointment may be entitled to order the report.  Policy Locator can make it easy to discover life insurance benefits you may not have realized existed.

How to Submit a Request

1. Download the search request form and fill in the required information. 
2. Include an original death certificate, containing an official seal, with the request form.
3. Include a $75.00 check (payable to MIB Solutions, Inc.) or money order in U.S. currency.
4. Mail the above items to MIB Solutions at the address listed below or supplied on the form.

Your Policy Locator search report and the "Policy Locator Research Primer" will be mailed to you shortly thereafter.

Mailing Address:
MIB Solutions, Inc.
50 Braintree Hill Park
Suite 400
Braintree, MA 02184-8734

Good Luck!

Sharon Davis 

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Listen to: 

Transferring the Family Cottage - Part 6 - Hull on Estate and Succession Planning #174

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion about the best practices for transferring the family cottage to the next generation while addressing the issue of defaulting on a trust or contract that was previously agreed upon by all beneficiaries.

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

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As mentioned in Craig Vander Zee’s recent blog on Contested Passing of Accounts, preparedness is the hallmark of success in an estates practice. Responding at a moment’s notice with facts, documents and other relevant evidence from your trial binder will show well not only for your client’s case but for you as well. Impressions on the judiciary are long-lasting. Providing well-organized, helpful information will endear you to any judge faced with the need to sort out a myriad of facts, issues, law and parties in order to dispense proportionate amounts of justice. 

The new Practice Direction Concerning the Estates List of the Superior Court of Justice in Toronto  that came into effect on April 1, 2009 encourages all efforts that assist the court to do its job expeditiously and well. Where there are multiple appearances and/or complex or voluminous proceedings, a Compendium of Documents containing key materials such as extracts of documents, transcripts, previous orders and authorities must be prepared. Highlight relevant portions and consult on a joint Compendium if you can (cooperation with the other side also wins points). Use diagrams, family trees, lists of persons, corporate org charts, chronologies and any other helpful synopses of complex or technical evidence; here is your chance to be creative. Visuals are particularly effective and providing graphic representations can cut the time required to sort out complex relationships or complicated timelines.   

The person starting a case is responsible for filing and maintaining an Endorsements/Orders Record, a red three-ring binder containing endorsements, orders and reasons for judgment. You have five days from issue to provide copies along with numbered tabs and an updated table of contents to the Estates Office.

While you are creating material for the court’s use, you can make copies for your trial binder and include extra information for optimum use by you – the most organized/best counsel in the room! 

Be a trail blazer with your trial binder and you will see that it can be an effective tool to help you win friends (and cases) and influence people (and judges).

Cheers,

Sharon Davis

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Decore Estate, a recent decision from the Court of Queen’s Bench of Alberta, explored the issue of the admissibility of extrinsic evidence in a proceeding to determine the appropriate interpretation of a testator’s will.  

The application involved a dispute over the proper construction of the deceased’s last will and testament and codicil. In particular, there was an issue of the value of an asset that the testator had bequeathed to two beneficiaries and the appropriate timing of the bequest. In advance of this application the court was asked to determine what types of evidence would be admissible. The proposed categories were armchair evidence (which establishes a context for the terms of the testator’s will) and intention evidence (which included “hearsay” reports of the testator’s words). 

The court found that the law as it related to extrinsic and arm chair evidence was relatively clear and could be summarized by the following principles:

a)      When the terms of a testamentary document are clear and unambiguous, no further evidence beyond the document is admissible;

b)      Where there appears a legitimate issue of the proper interpretation of a testamentary document, armchair and intention evidence is admissible. However, the court found it was not sufficient for there to simply be competing interpretations – the interpretations must all be plausible;

c)      Where it appears the testator made a mistake of fact (but not law), both armchair evidence and intention evidence can be adduced. 

The court further held that once it had been established that the two categories of evidence were admissible, the issue of whether individual pieces of evidence were admissible was one to be determined at trial. At that time, the relevant inquiry would be whether the evidence is probative, necessary, and reliable. 

In this case, the court determined that armchair evidence and intention evidence could be adduced because there was a reasonable dispute about the proper construction of the deceased’s testamentary documents, the interpretations being advanced were all plausible, and the proposed evidence, if accepted, would advance the enquiry the court was required to undertake. 

Have a great weekend!

Megan F. Connolly 

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A recent decision of C.L.B. v. J.B.addressed when it is appropriate for a court file to be sealed. The case involved two minors who had lost a parent in the 9/11 terrorist attacks and had received victims’ compensation. The court ordered that the funds be held in trust and set out a timeline for when the trustees would be required to pass accounts. 

When the trustees later applied to pass accounts, they also brought a motion that the court file be sealed so as to protect the minors’ privacy. 

In considering the motion, Brown J. pointed to the importance of an open and transparent court system. This is not just because public policy favours openness as a way of encouraging the public’s faith in the court system but in addition the public’s right to obtain information about the court system is protected by s. 2(b) of the Charter of Rights and Freedoms. 

Brown J. found that a sealing order should only be granted in the following circumstances:

1.      When there is a serious risk  to an important interest and there is are no reasonable alternatives to preventing the risk; and

2.      When the benefits to granting the order outweigh the negative effects, having regard not just to the interests of the litigants but also the rights of the public. 

Ultimately, Brown J. found that in the circumstances a sealing order was unwarranted. Although the matter involved minors, he pointed out that legal proceedings frequently do and it is far from the norm for the court to order a file sealed. Moreover, he found that there was insufficient evidence before the court that there was a risk of serious harm if the order was not granted. 

He also expressed concern about the possible “deleterious effects” that shielding settlements involving minors or matters involving a fiduciary’s management of a minor’s assets would have on the necessary transparency of a court’s review.   

Finally, he found that a “reasonable alternative” existed – rather than sealing the file, he ordered that the title of proceeding be amended and that any materials filed with the court list the trustees, the names of the trusts, and the minors using only initials rather than full names.  

Have a great day!

Megan F. Connolly 

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The New York Times recently featured an article on the growing trend of at home funerals in the United States. A home funeral can involve anything from holding the visitation for a deceased love one at home, to burying the individual in, say, his backyard (with the appropriate permit, of course). 

There are a few reasons for the increase in popularity. To begin with, there are substantial cost savings to be had. The average cost of funeral home services in the United States is $6,000.00. On top of that, there is the additional expense of the burial or cremation. In contrast, for a home funeral where the deceased is being buried in the backyard, the expense can be limited to the coffin used for burial. Even if the deceased’s loved ones opt for a burial in a cemetery or a cremation, the family can still save the cost of the funeral parlour by having the visitation at home. 

A second reason is the desire on the part of those making the arrangements to have a more intimate and informal experience when bidding goodbye to a loved one (there is also an increase in people pre-planning their own home funerals). Rather than outsourcing the planning to the funeral industry, family members are able to say goodbye on their own terms and without feeling like the process has been “commercialized”. 

The article compares the growth in home funerals to the growth in home births that started to occur about thirty years ago. It should come as no surprise that home funerals are developing into an industry of their own. There are currently more than forty five organizations/individuals in the U.S. devoted to helping people plan home funerals (the job title for someone who assists in the planning process is a “death midwife”).   

With the growth in the home funeral industry, various states are starting to take steps to regulate the practice (with the support of the traditional funeral industry!). For example, Oregon has passed a law requiring that death midwives be licensed in order to provide services. Nevertheless, the trend in home funerals shows no signs of slowing and appears to be part of a larger shift to natural and less expensive burials. 

Have a great day!

Megan F. Connolly  

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Listen to - The Willis Estate Case - Hull on Estates #172

The Willis Estate Case - Hull on Estates Episode #172

This week on Hull on Estates, Bianca La Neve and Rick Bickhram discuss the recent decision of Justice Brown regarding the Willis Estate case and the issues that can arise during contempt proceedings and appropriate sentencing in the field of estate and trust litigation. 

Re Willis Estate, 2009 CanLII 30681 (Ont.S.C.J.)

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

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Listen to - Transferring the Family Cottage - Part 5 - Hull on Estate and Succession Planning

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion of the most efficient methods for transferring the family cottage.  Ian and Suzana discuss the effectiveness of using a trust or legally binding agreement for the beneficiaries and how to create one.

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

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The Supreme Court of British Columbia recently dismissed an application where the applicant sought to adopt a child he had previously adopted with his common law wife.  

The adoptive father was actually the biological grandfather of the minor child in question.  When the minor, who was born in Yukon, was an infant, her biological parents were unable to care for her and she was made a ward of the state.  She later went to live with her grandfather in British Columbia, and the grandfather decided to adopt her.  

He was told that Yukon did not permit one-parent adoptions (although this turned out not to be correct).  As a result, his common-law wife joined him as an adoptive parent and the adoption went through.    

After the adoption was finalized, the adoptive mother discovered that the minor was legally considered her child for estate planning purposes and could potentially have a legal claim to her estate.  She worried that this would have a negative effect on her relationship with her adult children.  

The adoptive father then applied for an order that he be permitted to adopt the child (again) – the effect being that he would be the only adoptive parent and the adoptive mother would have “unadopted” the child.  

The court dismissed the application.  In its reasons it pointed to the language of the B.C. Adoption Act that made clear that the paramount consideration was the best interests of the child.  The judge found that the application was not only not in the best interests of the child but had nothing to do with the children’s interests at all.  

The court was also distinctly unimpressed with the argument that the adoptive mother’s estate planning might be negatively impacted.  Indeed, the court was concerned that if it granted the relief sought it might be depriving the child of rights it had obtained by being adopted.  

Have a great day!

Megan F. Connolly 

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The recent decision of Pachaluck Estate v. DiFebo provides a useful example of the costs exposure that parties can face on an application to pass accounts.  

In this case, a beneficiary had objected to the compensation the estate trustee had taken.  The court agreed to an extent – it ordered compensation be reduced (by about $9,700), but not by as much as requested by the beneficiary.    

The court then had to decide the issue of costs.  The executor argued that he had been prudent in his administration of the estate and while the beneficiary was successful in a partial reduction in compensation, she was unsuccessful with regard to most of the objections she had raised. The executor sought fully indemnification for his costs from the estate and argued that the beneficiary should receive partial indemnity costs. 

The beneficiary argued that because she was successful in obtaining a reduction in compensation and because she was unable to get a full accounting until the court had ordered one be produced, her costs should be fully paid by the executor.

The court found that there was a mixed result in its determination of the application to pass accounts.  While the court  agreed the executor had acted in good faith, a reduction in compensation was nevertheless ordered and the court was satisfied that a full accounting would not have been provided absent a court order.

The court was critical of the fact that neither party had served an offer to settle and found that to the extent the estate trustee and beneficiary were entitled to receive costs from the estate it should be on a reduced basis.  Ultimately, the court awarded each less than half the costs that were sought.  

This case is a reminder of some of the perils involved in pursuing a contested passing of accounts.  To begin with, both parties were stuck paying more than half the costs each had incurred personally and, as such, were "out of pocket" in the litigation.  Second, the compensation that was repaid to the estate as a result of the litigation was less than the legal fees that ended up coming out of the estate to reimburse the parties, which begs the question of whether the beneficiary was worse off for pursuing the litigation in the first place.  

Have a great day!

Megan F. Connolly

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There is nothing like sex to get someone’s attention. The matter of the estate of Paul Raymond was recently brought to my attention – mainly due to the deceased’s business undertakings. 

Britain’s Paul Raymond died on March 2, 2008 leaving an estimated estate of 650m pounds. Raymond is described as “the porn baron turned property tycoon”. Raymond is said to have built his empire on profits from his soft-porn business, which he launched in 1957. According to a BBC report, Raymond’s big break came when he side-stepped censorship laws that prevented naked women from moving on stage by having topless women stand on stage completely still. Britain’s Hugh Hefner went on to stage plays such as “Yes, We Have No Pyjamas”. He also launched various pornographic magazines and a strip club. He used earnings from these endeavours to invest heavily in real estate. According to the TimesOnline report, by 1992 he had overtaken the Duke of Westminster as the richest man in Britain, with a fortune estimated at 1.5 billion pounds. He is said to have become a recluse in his final years.

 He left his entire estate to his two granddaughters, aged 22 and 16. It is said that they now control 60 of the 87 acres that make up the Soho district of London. (See Rick Bickhram’s blog on one of the granddaughters, Fawn.) However, his illegitimate son is now contesting the will. Another son was also cut out of the will. It is not known whether that son will be challenging the will.

*According to the BBC article, Raymond described himself as a “spiv” (I had to look that one up), and behaved like one, “sporting fur coats, a Rolls Royce, a tiny mustache and a fake tan”.

Have a great weekend.

Paul Trudelle

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The recent decision of Brown J. in Re Willis Estate, 2009 CanLII 30681 (Ont. S.C.J.) addresses the issue of an appropriate sentence to impose on an attorney for property who has been found in contempt of a court order requiring him to account for his dealings with his mother’s property.

In that proceeding, the court ordered in January 2008 that a son produce an inventory of assets held by his mother either alone or jointly with him, and to provide a full accounting of all dealings with the joint assets.

The son failed to do so. Various further orders were made, and ultimately, a motion was brought to punish the contempt. 

In making a ruling, Brown J. reviewed the court’s contempt power. “A court exercises its contempt power to uphold the dignity and process of the court, thereby sustaining the rule of law and maintaining the orderly, fair and impartial administration of justice.”

Brown J. then considered whether the son had, in fact, complied with the orders, and found that the contempt had not been purged. 

Turning to sentencing, Brown J. noted the difference between criminal and civil contempt. The purpose of criminal contempt sentencing is to punish, whereas the purpose of civil contempt sentencing is coercive and persuasive, designed to enforce the rights of a private party and to secure compliance. As such, custodial sentences are rare, and lengthy custodial sentences even rarer. Incarceration, although not unheard of, is a sanction of last resort. 

The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

After considering the nature of the contempt, and various mitigating and aggravating factors, the court ordered that the son pay a fine of $7,000, failing which, he was to be jailed for 7 days. He was also to retain professionals to assist him in preparing the accounting and inventories. Costs were to be spoken to.

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Yesterday, I set out the fact situation in Turner v. DiDonato (2009), 95 O.R. (3d) 147 (Ont. C.A.).

The trial judge decided that Dilia was entitled to the difference between the insurance proceeds that she received and the $100,000 insurance policy that was supposed to be in place. The trial decision was upheld on appeal.

The trial judge held that there was a clear breach of the Separation Agreement, and that the remedy was appropriate in order to put Dilia in the position that she would have been in had the contract been performed.

The Court of Appeal did not agree that the trial judge did not give properly interpret the Separation Agreement. In particular, it did not agree that the clause allowing Dilia to have a first charge against the estate for in the event that Albert died without insurance provided Dilia with the appropriate remedy. This clause, the Court of Appeal held, did not apply because Albert did, in fact, have insurance – it was simply insufficient. 

The Court of Appeal also dismissed the suggestion that the insurance policy was simply security for the support payments. Firstly, the Separation Agreement did not express that it was security. Secondly, the Separation Agreement did not allow Albert to reduce the amount of insurance as the support obligations diminished. Thirdly, it was held that allowing Dilia less under the Separation Agreement as a result of its breach by Albert than Dilia would have received but for the breach was “counterintuitive”. Fourthly, the estate’s suggestion that it would have a claim against Dilia for any insurance proceeds in excess of the support obligations was “at odds” with the stated intention of the parties in the Separation Agreement to fully settle their rights and obligations.

The Court of Appeal agreed that Dilia’s admission that her understanding was that the insurance policy was security for the support payments was not relevant. The Separation Agreement was unambiguous, and contained an “entire agreement” clause, and extrinsic evidence was irrelevant. Further, as such, corroboration under s. 13 of the Evidence Act was not required, as the decision was based on the interpretation of the agreement, and not the evidence of Dilia. Finally, the Court of Appeal dismissed the suggestion that Dilia received a windfall: it held that Dilia received simply what she was to receive under the Separation Agreement.

Did you concur or are you in dissent?

Paul Trudelle

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Listen to Transferring the Family Cottage -Part 4

This week on Hull on Estate and Succession Planning Ian and Suzana continue their discussion of the transfer of the family cottage. They explore three ways of transferring the cottage on death; 1) Putting the gift of the cottage in your will 2) Testamentary Trust and 3) Outright gifting.

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 Mutual Wills

This week on Hull on Estate and Succession Planning Jonathan Morse and Chris Graham discuss aspects of mutual wills and the doctrine of mutual wills. They look into some interesting cases related to this topic as well advantages and disadvantages of mutual wills.

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

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Today I will set out a fact situation and let you determine the outcome. Tomorrow I will let you know how the trial judge and Court of Appeal decided the matter.

(As observed by a judge in Newmarket recently, being appointed a judge is like going to heaven – all lawyers want to go there, but just not yet.)

The Facts:

Albert and Dilia separated. They entered into a Separation Agreement whereby Albert was to pay spousal support to Dilia until she turned 65. He was also required to maintain a policy of life insurance benefitting Dilia in the amount of $100,000 until Dilia turned 65. The policy also provided that in the event that Albert died without insurance in effect, then his support obligations would be a first charge on the estate.

Albert died before Dilia turned 65. At the time of his death, he didn’t have the required life insurance. Dilia only received insurance proceeds of $43,507.15. She then sued Albert’s estate and his second wife, claiming the difference between the $100,000 that she was to receive under the Separation Agreement, and the amount that she in fact received.

Albert’s estate and second spouse argued that the policy of insurance was only security for the spousal support that Dilia was to receive, and that the insurance proceeds that Dilia received were in excess of her support entitlement. (It was an agreed fact that the support obligations until the age of 65 were less than the insurance proceeds received.) They argued that an award of $100,000 would be a windfall to Dilia.

What did the Court (and Court of Appeal) do? Tune in tomorrow.

(For those who can’t wait, see Turner v. DiDonato (2009), 95 O.R. (3d) 147 (Ont. C.A.).)

Paul Trudelle

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I’m not sure what to make of this.

Coffin Couches is a US company that “recycles” coffins into couches. The company collects “used” coffins from funeral homes. Apparently, the coffins are not used for burial due to slight cosmetic inconsistencies, and cannot be resold. Coffin Couches reconfigures them into a “unique one of a kind coffin couch”. The couches even sport a biohazard insignia. According to the website, once a human body is placed in a coffin, it is considered biohazard tissue. The couches have to have the biohazard insignia “in the event body fluids are exchanged on these coffins”. (Increased “creepy” for many; increased “cool” for some.)

According to the website, Jesse James of West Coast Choppers, Kat Von D of LA Ink and the Los Angeles County Coroners Office each have a coffin couch.

US prices range from $3,500 to $4,500 ($2,800 for the Monster Chair), plus shipping.

I don’t expect to see one in our reception area any time soon.

Thanks for reading.

Paul Trudelle

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CNN recently reported disturbing events, whereby employees at a historic cemetery near Chicago allegedly dug up more than 300 graves as part of a conspiracy to resell burial plots to unsuspecting buyers.  

Reportedly, at least four people are in custody facing a slew of felony charges. Additionally, investigators are in the process of attempting to determine the scope of the scheme. It may not be an easy task since, among other things, it is possible that the employees doctored records to conceal the scheme.   They are expected to use thermal imaging to assist their efforts, and have brought in forensic scientists to help.

While most of the excavations reportedly occurred in back lots, where the plots were older and not frequently visited, they are not certain of this. Other plots may have been disturbed as well.

Investigators are faced with the unenviable task of trying to find the families of those whose graves were disinterred, as well as those people who unknowingly purchased occupied plots. 

A sad day indeed….

Natalia Angelini

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Given the nature of estate litigation, a party to the dispute, and/or a witness that is to testify at trial, are at times elderly, in poor health, incapable of testifying or out of the jurisdiction, such that it is appropriate for their evidence to be given out of court in advance of the trial date. Rule 36 of the Rules of Civil Procedure regulates taking of evidence before trial. 

A person may be examined under this Rule either by consent of the parties or with leave of the court. The court is to take into account several factors when determining whether to grant leave to order an examination before trial, which are particularized in Rule 36. These include the convenience of the witness and saving of costs. This permits the court to take a more broad approach, since previously these orders were limited to situations where it was established that the witness will likely be out of the jurisdiction or incapable of testifying.  

Moreover, previously, leave of the court was necessary before the examination of a witness could be used at trial. Now, the transcript or videotape of the examination of a witness who is not a party may be used “unless the court orders otherwise”, and the witness shall not be called to give evidence at trial except with leave of the court. In contrast, the transcript or videotape of the examination of a witness who is a party may not be used except with leave of the court or the agreement of the parties.

While it seems to me that live testimony will likely have more impact then a transcript or videotape, if the circumstances warrant it, this is a handy tool to avoid difficulties and complications in attempting to get witnesses and/or parties on the stand when the trial date arrives, and ensures the evidence is preserved and gets before the court.  

Have a great day,

Natalia Angelini

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Listen to Parties Under Disability

This week on Hull on Estate and Succession Planning Natalia Angelini and Bianca La Neve discuss parties under disability. They look into how they are represented in proceedings and who has the authority to do so.

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 Transferring the Family Cottage - Part 3 - Hull on Estate and Succession Planning #171

This week on Hull on Estate and Succession Planning Ian and Suzana look at the more complex solutions to the transfer of a cottage. The discuss the inter vivos transfer  - putting the cottage in trust for your children while you are living. 

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

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As noted in one of my earlier blogs, gone are the days where estate litigants almost automatically were awarded their costs out of the estate. The trend in recent years has adopted elements of the loser- pays philosophy, which has long been applied to other types of litigation. 

Moreover, parties in estate matters who conduct themselves in such a manner that serves to protract and unnecessarily increase the costs of litigation can more and more often find themselves penalized with a cost award.

This trend is no more clearly seen than in Teffer v. Schaefers, a recent decision of the Ontario Superior Court of Justice, where an estate trustee was Ordered to personally pay more than half of the legal costs awarded to the various other parties due to his conduct in the litigation.

That said, less than 25% of the aggregate legal costs sought were actually awarded (although I understand further submissions are being made).  This result is indicative of another noteworthy trend that we are seeing in estate matters. That is, judges are increasingly exercising their discretion to ensure cost awards are subject to the overriding principle of fairness and reasonableness in light of all the circumstances of each particular case, as well as proportionate to the amount at issue (in addition to being reflective of the factors set out in Rule 57.01(1) of the Rules of Civil Procedure).

This decision should serve as a caution to anyone involved in estate litigation – costs (even to the victor) are not guaranteed! 

Have a great day,

Natalia Angelini

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In estate litigation it is not uncommon for one or more disputing parties to be under disability. Unless the court or a statute provide otherwise, a party under disability must be represented by a litigation guardian (see Rule 7 of the Rules of Civil Procedure, which regulates proceedings by or against parties under disability). 

Someone can act as the litigation guardian for a plaintiff (or applicant) by filing an affidavit with the court, the required contents of which are set out in Rule 7.

In the case of a defendant (or respondent) who is a minor, the Children’s Lawyer shall act as the litigation guardian, unless the court orders otherwise.

In contrast, in the case of a defendant who is an adult, aside for a few exceptions set out in the Rule, no one can act as a litigation guardian until appointed by the court. The evidence that must be filed in support of the motion for such appointment is also particularized in the Rule.

Some other noteworthy provisions in Rule 7 are:

·                    a litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee must be represented by a lawyer;

·                    a litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim;

·                    where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children’s Lawyer, the Public Guardian and Trustee or any other person as litigation guardian; and

·                    no settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.

Have a great day,

Natalia Angelini

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The sudden death of Michael Jackson has sent a shock-wave of sadness across the globe. I expect it will be some time before you can tune in to various media without seeing coverage on it. 

I find myself drawn in to the discussion, which one of my colleagues also blogged on last week.  His commentary focused on the expected complex administration of Jackson’s estate, given both his sizeable assets and debts. This blog focuses on one aspect of the human element of the tragedy, sparked by Jackson’s Will. 

As noted in a recent New York Times Article, in his Will Diana Ross is appointed as the guardian for Jackson’s children if his mother is no longer willing or able to fulfill that role. 

In Ontario, a custody or guardianship appointment by Will is not determinative of the issue. It only has a temporary effect, in that any appointment for custody or guardianship expires ninety-days after such appointment becomes effective (i.e. ninety-days from the date of death in this case) (see section 61(7) of the Children’s Law Reform Act). 

However, if the appointee applies to the court for custody or guardianship within the ninety-day period, the appointment expires when the application is disposed of.   While each case is usually fact-specific, I would expect that a testator’s wishes set out in his/her Will is a factor a court would give significant weight to when considering such an application.

In Jackson’s case this issue is already a live one, with potentially several people vying for custody and/or guardianship. It will be interesting to see who ends up being the primary caregiver(s) of his young children.

Have a great day,

Natalia Angelini

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My colleague Natalia Angelini blogged on February 18 of this year about the increasing possibility that independent, adult children may be entitled to dependant support.

A 2009 Ontario Bar Association paper by Susan Woodley concluded that moral obligations of deceased parents in Ontario may require them to provide proper and adequate support to their children, spouse and dependants.

While the legislation in British Columbia clearly distinguishes any case from that province, a consideration of a recent case on point illustrates the roots of this evolving trend. 

In Sikora v. Sikora Estate 2009 BCSC 195, two of four adult sons of the testator brought an action under B.C.'s Wills Variation Act.  The Deceased had one child by his first marriage, three children with a subsequent common-law spouse, and at his death he was married to the defendant, San Meei Sikora. The Deceased’s residue to be divided amongst three sons equalled just over $11,500.

The two plaintiff brothers maintained contact with their father despite a difficult childhood. Each plaintiff provided evidence of respective incomes of about $90,000 and $35,000 and described their relationships with their father whom they assisted in his business and investment properties over the years. The Deceased’s wife’s responses created some credibility problems for her.

Justice Cullen reviewed the case law from the Supreme Court, Tataryn v. Tataryn Estate and a B.C. case, Clucas v. Clucas Estate (1999), 25 ETR (2d) 175 (BCSC) that summarizes the principles of the Wills Variation Act.

In Sikora, the Deceased’s wife accumulated her own assets while the Deceased did not. The plaintiffs showed that despite their independence their father had a moral obligation towards them.  The residue of the Deceased’s estate diminished in a manner that favoured his surviving wife and his moral obligation to his spouse was less firmly established than in other cases.

The Deceased used his money to purchase the matrimonial home, allowing the defendant to invest her money and increase her own assets. The plaintiffs succeeded and were therefore registered as tenants in common on a property with a life interest to the defendant.

Thank you for reading this week.  Enjoy your weekend.

Jonathan

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Listen to News Stories That Impact Estate Litigation

This week on Hull on Estates Jonathan Morse and David Smith discuss some big stories that have occurred in the news lately that have potential impact on those who practice estate litigation. They take a look at the death of Michael Jackson and the decision made by the courts in regards to the sentencing of Bernard Madoff.

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

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Listen to The Family Property - Part 2

This week on Hull on Estate and Succession Planning Ian and Suzana continue their discussion on the family property. They look into two simple options when choosing to manage the transfer of wealth of a cottage - gifting it during your lifetime and selling the property.

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

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They bound me with masking tape until I looked like a mummy. It took them
quite a while because they ran out of breath. When they loaded me into the
car I thought I was a dead man.
- James Arnburn, financial adviser and alleged kidnapping victim

Having lost their savings to Florida’s boom-and-bust property market, and apparently sporting one heckuva grudge, Roland and Willy, ages 74 and 60, respectively, reportedly clobbered their financial adviser, James Arnburn, with a walker, bound him with duct tape, then took him for a long drive in the trunk of their Audi. After arriving at Roland’s home a mere 300 miles away, they were joined by retired doctors Gerhard and Iris, ages 63 and 66. The foursome proceeded to hold Mr. Arnburn captive in an unheated cellar for four days, during which time they allegedly burned him with cigarettes, beat him with a chair leg, and even threatened him with the Russian mafia. Armed commandos were eventually scrambled, the house was stormed and Mr. Arnburn was rescued from his ordeal.

According to the Daily Telegraph, this is only the latest example of what is being referred to as ‘silver crime’ – ‘the violent backlash of pensioners who feel cheated by the world.’ To wit, the Times Online reported that over the course of nine years, a group of pensioners dubbed the Grandpa Gang and 'armed' with carrots in their pockets, robbed 14 banks across Germany in an attempt to boost their retirement savings and alleviate their disgust over the size of bankers’ bonuses. The trio won’t be back at the bridge table for about ten years, possibly less for good behaviour.

Jennifer Hartman, Guest Blogger