Summary of the Hull & Hull Breakfast Seminar - Hull on Estates #226
Listen to: Summary of the Hull & Hull Breakfast Seminar
This week on Hull on Estates, Paul Trudelle and Nadia Harasymowycz discuss the recent quarterly Hull & Hull breakfast seminar. The topics discussed at the seminar include:
- Family matters and their relation to estates, specifically separations and divorce.
- The effect of handwritten changes on wills.
- Suicide notes and the effect they may have on the distribution on an estate.
If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
Nadia M. Harasymowycz – Click here for more information on Nadia Harasymowycz.
Nadia Harasymowycz: Hello and welcome to Hull on Estates. You’re listening to episode 226 on Tuesday, October 19, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Paul Trudelle: Hi and welcome to another episode of Hull on Estates. I’m Paul Trudelle.
Nadia Harasymowycz: And I’m Nadia Harasymowycz.
Paul Trudelle: How are you today, Nadia?
Nadia Harasymowycz: I’m good, Paul. How are you?
Paul Trudelle: I’m great, thanks. We thought we’d spend our time podcasting today talking a bit about the recent Hull & Hull Estates Breakfast Seminar that we put on quarterly. I want to just speak about that because I was there and I spoke at it, so I thought that would be a good segway. And I thought we’d spend a bit of time talking about some of the other speakers and the topics that they spoke on as well.
Nadia Harasymowycz: And I hope all of you were able to join us, but for those of you who weren’t able to make it or to catch us on the webcast, David Smith spoke about family matters and their relation to estates, with particular focus on separations and divorce, which was a very interesting paper on how those two legal fields meet.
Paul Trudelle: Right. And a lot of issues arise, particularly where you see estates and the estate has to deal with or consider how to deal with the effect of prior Separation Agreements or prior marriage contracts. And that’s always a hot topic.
Nadia Harasymowycz: Absolutely. The other speaker we had that was of interest was Sharon Davis. And…
Paul Trudelle: Her topic, Sharon’s topic was the effect of handwritten changes on Wills. And we often see Wills that are brought in, they are prepared by a lawyer, they’re signed by the testator and two witnesses, but lo and behold, there’s a number of handwritten notes put on afterwards. Either the testator trying to change the Will in some way, mark it up or just maybe just to point out different ways of dealing with things or thinking about how they want their estate dealt with. And a big issue becomes whether those handwritten changes are testamentary in nature or whether they’re to be disregarded by the Court. So Sharon prepared a paper that addressed those issues.
The third topic was my talk on suicide and suicide notes and the effect that a suicide note may have on the distribution of an estate, whether a suicide note can be considered to be testamentary. And on that point, there’s just…in doing the research I came across staggering statistics on the numbers, the sheer number of suicides around the world and in Canada. It’s one of the leading causes of death amongst Canadians. I think it’s the top 4. And it’s something that we see and face on a daily basis as estates that are brought about prematurely. And there’s often a note that’s left that raises issues with respect to whether that note is testamentary and whether it’s to be considered a Will or not.
Nadia Harasymowycz: And I’m sure your topic will tie in interestingly with Sharon’s in terms of the holographic nature of the documents.
Paul Trudelle: They did, yeah…it did and we both spoke about the requirements for a holograph Will. Most…usually when we’re dealing with a suicide note, they’re still in handwriting. And the legislation, the Succession Law Reform Act addresses the requirements for a valid handwritten or holographic Will. It needs to be wholly in the handwriting of the testator and signed by him or her.
Nadia Harasymowycz: I know that one of the things that I found most interesting about the suicide topic was the issue of capacity and the change of perspective through time as to whether or not somebody who has committed suicide could even have capacity. I know you touched on it briefly in your paper and then a little bit more in your presentation but did you have any thoughts on how those two issues will continue to proceed through the estate field?
Paul Trudelle: I think that the prevailing thought now is not one of moral blameworthy or culpability on the part of the suicide victim or the person who attempts suicide. Historically that person used to be blamed or it was a shortcoming on their part and in fact attempted suicide was a criminal act until relatively recently, until 1972. That…the blameworthiness has been moved away from and now it’s seen as not a fault of the person who attempts suicide but is seen as a mental health issue rather than a criminal act, and they’re not seen as being blameworthy; rather they’re seen as being a victim of circumstances and mental health issues. That leads into a problem in estates law because if the person…if the suicide is seen as a result of mental health issues, the question becomes whether the person had mental health issues that would affect or touch upon the testamentary capacity to make a Will.
Nadia Harasymowycz: I think it’s interesting to note and this is something that I hadn’t come across beforehand, but that the same prongs of the test for capacity would apply in a suicide case, almost as if the suicide were a death of natural causes. I mean, it’s just one of the factors that you look at for capacity.
Paul Trudelle: That’s right, yeah. The case law is pretty clear that the suicide itself doesn’t mean the person had or lacked capacity. The test in Banks and Goodfellow will be looked at and each of those prongs that you have referred to will be addressed to see whether the person did have knowledge of the assets of their estate, did know who would be the natural object of their bounty, did know whether they knew what the effect of or the nature of the document was and whether it was a Will or not – those types of tests. You need to also be free from delusions under that test and that’s something that the Courts will look at. The fact that there was a suicide doesn’t mean that there was necessarily a delusion that the person was suffering from.
Nadia Harasymowycz: Which I think you touched on in at least two of the cases that I recall you discussing at the Breakfast Series, where individuals had been entirely cut out of the Will. And the Court specifically looked at delusions as part of a claim that the holograph Will was not valid. And they found that there was no delusion.
Paul Trudelle: That’s right, yeah. And the Court will look at, you know, what the testator was thinking at the time, what their circumstances were at the time. In one case, the testator felt and was being isolated by her family and the Court felt that in those circumstances, there wasn’t a delusion present and she was capable of making a Will otherwise and that it was not unreasonable for her to cut out her family and leave part of her estate to someone else. On the other hand, though, there’s also a decision that I refer to in my paper where the person clearly did have delusions. It’s not any delusion that’s going to impact upon a person’s capacity. The delusion has to directly affect the disposition that’s made. But in that case, the delusion was to the effect that the spouse was trying to poison him. The Court found that there was no evidence to support that belief and therefore felt that there was a delusion present that had an impact on the making of the Will and that’s why the wife was left out and the Will was ruled to be invalid because of lack of capacity.
Nadia Harasymowycz: It seems like in the case of a suicide or a suicide note that is brought before the Estates Court, that it’s on a case-by-case basis, that there isn’t really any hard and fast rule that you can look at for determining whether a note left behind is going to be testamentary.
Paul Trudelle: No, that’s exactly…you’re exactly right there. The Court’s gonna look at every case individually. The case law that I have referred to and that you can put into a fact when you’re dealing with this issue, a number of those cases say this is dealt with on a fact by…you know, a case-by-case basis. And it’s the individual facts that are gonna be very relevant.
Nadia Harasymowycz: Excellent. Well I think that brings us to the end of our discussion. If you’re looking for some information on either Paul’s suicide paper or the other papers that were brought up at the Breakfast Series, keep checking our website. We’re gonna have them posted shortly and we look forward to hearing from you if you have any questions.
Paul Trudelle: That’s great. Yeah…I commend you to those papers and the papers by Sharon and David. They should be on our website shortly. I think we also put up a video of our Breakfast Series in due course.
Nadia Harasymowycz: Indeed we do.
Paul Trudelle: And you can also check out our blog for a number of discussions on these and other topics.
Nadia Harasymowycz: And if, after reviewing all that information, you have any questions, you can send us an email at hull.lawyers@gmail.com. We hope that you enjoyed the show. I’m Nadia Harasymowycz.
Paul Trudelle: And I’m Paul Trudelle. Thank you for listening.
Nadia Harasymowycz: Until next week.
This has been Hull on Estates with the lawyers of Hull & Hull. 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 podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.
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