How Things Change Before and After Incapacity
Continuing Powers of Attorney for Property provide that the Attorney for Property is to act on behalf of the donor either before and/or subsequent to any incapacity (of the donor) to manage property.
If an Attorney for Property acts prior to incapacity to manage property on the part of the donor, he is "merely an agent and, notwithstanding the fact that the power may be conferred in general terms, the attorney's primary responsibility in such a case is to carry out instructions of the donor as principal." (Cullity, J. Banton v. Banton (1998), 164 D.L.R. (4th)(176).
If an Attorney for Property acts subsequent to incapacity to manage property on the part of the donor, the Attorney for Property has a considerably more onerous fiduciary duty: "In such a case, the attorney does not receive instructions from the donor except to the extent that they are written into the instrument conferring the power. The attorney for property must [instead] make decisions on behalf of the donor." (Banton, supra)
Although the Attorney for Property does not act subject to the provisions of the Trustee Act, the provisions of the Substitute Decisions Act (SDA) impose the typical obligations of a trustee on the Attorney for Property.
David Morgan Smith - Click here for more information on David Smith.
Hull & Hull LLP Breakfast Series Recap - Hull on Estates and Succession Planning
Listen to Hull & Hull LLP Breakfast Series Recap
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss our most recent Breakfast Series Presentation which was held at the Ontario Bar Association facilities on September 22, 2011. Additionally, they touch upon the recent decision Hope v. Martin ONSC 5447 (CanLII)
If you have any comments or would like more information on our Breakfast Series Presentations, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
For more information on Ian Hull click here
For more information on Suzana Popovic-Montag click here
The Failure to Exercise a Power of Discretion
The Court may be asked to intervene if a trustee does not give proper consideration to the exercise of a discretion for the benefit of any of the beneficiaries. Donovan Waters suggests that the non-exercise of discretion may amount to bad faith:
"A trustee is in bad faith if he intentionally exercises a discretionary power for his own benefit; but it could be argued that bad faith includes the situation where the trustee abuses his discretion by exercising it in a manner, or not exercising it for a reason, which is outside the scope of his discretion."
In Boe v. Alexander the British Columbia Court of Appeal stated:
"From a consideration of these cases, it is in my view clear that the jurisdiction of the Court to review the exercise of the trustee's discretion cannot be displaced by even the broadest language creating the discretion. The law imposes overriding duties on trustees, breach of which will call for the Court's intervention….A privative clause protecting the exercise of a trustee's discretion will not be effective to prevent judicial review whenever the trustees:
a. have failed to exercise the discretion at all;
b. have acted dishonestly;
c. have failed to exercise the level of prudence to be expected from a reasonable businessman; and
d. have failed to hold the balance evenly between beneficiaries, or have acted in a manner prejudicial to the interests of a beneficiary."
David Morgan Smith - Click here for more information on David Smith.
Advertising for Creditors
Estate Trustees have the authority to settle claims against the estate. Claims may be asserted by a creditor, often in response to an Advertisement for Creditors.
An Advertisement for Creditors typically runs for three consecutive weeks in a daily newspaper in the area where the deceased lived and worked at the time of death. The date by which all claims must be submitted to the estate solicitor is usually one month after the first date that the advertisement is published whereafter, once the time period for filing claims has expired, the newspaper will provide an Affidavit of Proof of Publication.
While there is no statutory requirement to advertise for creditors, there are several reasons why it is prudent practice:
- to confirm that there are no outstanding creditors (especially if the deceased carried on an active business) and thereby eliminate liability with respect to such a claim if it arises after the estate has been distributed;
- if the estate trustee wants to pass his accounts it is usually required on the first passing of accounts; or
- on an intestacy, if the estate trustee wants to distribute the estate prior to the expiration of one year after the death of the intestate.
David Morgan Smith - Click here for more information on David Smith.
Seeking a Litigation Administrator
If an estate does not have an executor or administrator but is nonetheless named as a party in a proceeding, the court may appoint a person to represent the estate for a limited purpose. A recent case that has considered when a Litigation Administrator ought to be appointed is G.B. v. Fortin [2011] O.J. No. 2576. In this case, the Plaintiff alleged that the Defendant sexually assaulted him over a number of years while he was a resident in a detention facility. Unbeknownst to the Plaintiff, the Defendant died prior to the commencement of the action. Accordingly, the Plaintiff requested the court to appoint a litigation administrator for the estate of the deceased Defendant.
The Defendant institution opposed the appointment since the administration of the estate was completed almost nine years ago, and in any event, there was no estate. They also submitted that the appointment was statute-barred and, further, that the proposed litigation administrator was an inappropriate person to be appointed.The Court stated:
"The defendant argued that the appointment was unreasonable, given that Etienne Fortin left no estate. However, the plaintiff is not motivated by the existence of an estate to satisfy an award of damages, but rather by the possible existence of records. This is not an unreasonable approach to the litigation. To the extent that these arguments are all live issues, it is not clear that this action is out of time and as such, a litigation administrator should be appointed...."
David Morgan Smith - Click here for more information on David Smith.
Gifts, Litigation Administrators, and Ethics: Another Successful Breakfast Seminar
Hull & Hull LLP hosted one of its Breakfast Seminars yesterday. As always, the seminar was informative and a fun opportunity for us to connect with our friends in the estates bar.
Nadia Harasymowycz presented her paper on the recent Ontario Court of Appeal decision in McNamee v. McNamee, 2011 ONCA 533 (“McNamee”). In McNamee, the Court of Appeal considered what constitutes a legally valid gift in the context of a family law matter. Nadia’s discussion of the case included the following observations:
- The decision provides needed clarity in respect of the essential elements of a legally valid gift and the process by which a gift is determined. This decision should be reviewed by not only those who focus their practice on family law issues, but also those who practice in estate planning and estate litigation.
- The Court confirmed that the essential elements of a legally valid gift are, as follows: There must be (1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration; (2) an acceptance of the gift by the donee; and (3) a sufficient act of delivery or transfer of the property to complete the transaction.
- The Court noted that a gift does not require that the donor’s intention be limited to altruism or affection. Rather, the Court confirmed that a gift may be equally motivated by commercial purposes, provided the transfer is gratuitous.
- The Court clarified that while a donee is required to have a general understanding of the transaction to meet the essential elements of a legally valid gift, a donee is not expected to understand the precise terms and conditions attached to the gift.
You can find a thorough consideration of the decision in Nadia’s paper, which will be available on our website soon.
David Smith also presented on the topic of litigation administrators and representation orders. Ian Hull and Suzana Popovic-Montag presented on ethical issues commonly faced by estate practitioners. Their papers will also be made available on our website.
Thank you to those who joined us yesterday. We look forward to seeing you at the next Breakfast Seminar.
Have a great weekend,
Survey: Many Canadian Boomer Wills Need Updating
BMO Financial Group announced the results of a survey yesterday revealing that while the overwhelming majority of Canadian boomers had some basic estate plan in place, almost half of them have not updated them in the last ten years.
The survey conducted by Leger Marketing polled 1002 Canadian boomers – defined as being 45 years of age or older, who hold investible assets (including real estate) worth $500,000 or more.
The survey provides some interesting statistics:
- 85% of Canadian boomers have a will;
- almost 50% of those who had wills had not revisited or updated their wills in 10 years;
- the top reasons Canadian boomers prepared wills were: ensuring their assets are distributed as they wished (36%); avoiding family problems once they have passed away (34%); and protecting and looking after their family (28%);
- those who had updated their wills were motivated to do so for the following reasons: a significant change in wealth (25%); change in a beneficiary's marital status (21%); a death in the immediate family (11%); and a birth in the immediate family (11%);
- of the 15% of Canadian boomers who did not have a will in place, the main reason cited was lack of time (35%);
- 62% indicated that they had spoken to their children or beneficiaries about the contents in their will;
- 69% of those who had a will also had a power of attorney – of these respondents, 90% indicated that they had a power of attorney for property and 87% indicated that they had a power of attorney for personal care.
Thanks for reading,
The Importance of Filing Tax Returns on Time
As we have blogged before, one of the duties of an executor or representative of an estate is to prepare and ensure the timely filing of the final income tax return(s) of the deceased to the date of death and income tax returns for the estate annually until wound up.
The recent Federal Court decision in Rosenberg Estate v. Canada (National Revenue), 2011 FC 445, is a cautionary reminder to all persons engaged in estate and trust administration to be vigilant in ensuring that tax returns are filed on time, even where there may be insufficient information available to prepare the return, or risk facing significant late filing penalties.
In the case, the deceased died intestate in Quebec in June 2003. A liquidator (Quebec term equivalent to “estate trustee”) was appointed to administer the estate in November 2003. The liquidator retained an accountant and provided instructions for the preparation of the deceased’s final tax return. The accountant, unfortunately, failed to prepare the final return and a new accountant was retained. Also, difficulties between heirs of the Estate and the discovery of assets that had not been previously declared by the deceased to the Canada Revenue Agency (“CRA”) resulted in further delays. The liquidator did not have sufficient information to accurately determine the amount of tax owing by the time the final return was due on April 30, 2004 and, consequently, did not file the return by the deadline. The final return was ultimately filed in September 2004.
A significant late filing penalty was assessed by the CRA in respect of the final return. The liquidator’s request for relief of the late filing penalty was denied by the CRA, and the liquidator brought an application to the Federal Court for judicial review of the CRA decision.
The Court held that no credible explanation was provided by the liquidator as to why the final return could not have been filed on time and dismissed the liquidator’s application. The Court made the following significant findings:
- Notwithstanding incomplete information, the liquidator was required to file the return on time. While the liquidator may not have had all the information required to calculate the tax accurately, the liquidator was in a position to file a timely return estimating the tax due and should have done so by the filing deadline.
- It was the liquidator’s responsibility to diligently ensure that the Estate’s accountant was discharging his duty in preparing and filing the tax return.
- The complicated administration, disputes between the heirs, and undeclared assets did not constitute extraordinary circumstances sufficient to justify relief of the late filing penalty.
Thanks for reading,
Hull on Estates #262 - Continuing Legal Education Programs
Listen to: Hull on Estates #262 - Continuing Legal Education Programs
This week on Hull on Estates, Paul Trudelle and Sharon Davis discuss some recent continuing legal education programs. More specifically they talk about the LSUC Program - Practice Gems: The Administration of Estates 2011: Avoiding the Pitfalls.
If you have any comments, send us an email at hull.lawyers@gmail.com or leave us a comment on our blog.
Upcoming Events - Hull on Estates and Succession Planning
This week on Hull on Estates and Succession Planning, Ian Hull discusses a list of upcoming events for Hull & Hull LLP. In particular, he discusses the upcoming LSUC - Probate Essentials Program where he will be speaking on Non-traditional Testamentary Documents. This program is also chaired by our managing partner Suzana Popovic-Montag. For those who were unable to attend on September 16, there will be a live repeat on October 31, 2011.
If you have any questions or comments, please email us at hull.lawyers@gmail.com or leave us a comment on our blog.
Can an Email Change a Life Insurance Beneficiary Designation in Saskatchewan?
In a recent Saskatchewan case, Love v. Love, 2011 SKQB 176 (CanLII), the question arose whether an email constituted a sufficient declaration to change the beneficiary designation in a life insurance policy.
In the case, an ex-wife applied for a declaration that she was the designated beneficiary of her deceased ex-husband’s group life insurance policy. The deceased and his ex-wife were divorced. They had executed a separation agreement in which no mention was made of the deceased’s life insurance policy. Following the divorce, the deceased emailed his insurer to advise that he wished to change the beneficiary of his insurance policy from his ex-wife to his adult son. The subject line of his email was “Change of Beneficiary” and the email stated “Due to my recent divorce I would like to change the beneficiary on my pension etc. (from my former wife to my son.) Can you provide me with what ever paper work is required and I will fill them out and return them to you. Thanks.” The deceased was subsequently sent the change forms by the insurer. While the deceased partially completed the forms naming one of his three sons as the beneficiary, he did not sign or submit the change forms before his death. The deceased died intestate. Following his death, both the deceased’s ex-wife and the son named in the partially completed change forms claimed the life insurance proceeds.
The Court was required to consider whether the deceased’s email was a sufficient declaration within the meaning of s. 133(e) of the Saskatchewan Insurance Act (the “SIA”) to change the beneficiary designation in a life insurance policy. Section 133(e) defines the term “declaration” as follows:
“declaration” means an instrument signed by the insured:
(i) with respect to which an endorsement is made on the policy; or
(ii) that identifies the contract; or
(iii) that describes the insurance or insurance fund or a part thereof;
in which he designates, or alters or revokes the designation of, his personal representative or a beneficiary as one to whom or for whose benefit insurance money is to be payable;
Following the decision in Re Buckmeyer Estate, 2008 SKQB 141 (CanLII), the Court held that an email can be considered a document signed by the deceased and that an email can be a sufficient declaration to change the beneficiary designation in a life insurance policy where it meets all of the requirements in s. 133 of the SIA . However, the Court concluded that in the present case the deceased’s email was not a sufficient declaration on the basis that the insurance policy was not described sufficiently clearly and there was no clear direction with respect to new beneficiary. While the deceased’s email included reference to pension plan, no specific reference was made to his group life insurance policy. The Court stated that the use of term “etc.” did not broaden the email to include the life insurance. Additionally, the Court stated that there was no clear direction with respect to a new beneficiary – while the email refers to “his son” it does not name the son in question. The Court, therefore, concluded that the requirements under s. 133(e) of the SIA were not met and the ex-wife remained the beneficiary.
Thanks for reading,
Reminder: Hull & Hull LLP Breakfast Series - September 22, 2011
Just a reminder that Hull & Hull LLP's Breakfast Series will take place this coming Thursday, September 22, 2011.
Our Breakfast Series presentations are offered several times a year and provide valuable information on topics of interest to estate practitioners.
The September 22nd Breakfast Series presentation will cover the following topics:
- Is it a Gift? McNamee v. McNamee: A Look at the Recent Decision of the Ontario Court of Appeal - by Nadia M. Harasymowycz
- Representation Orders, Litigation Administrators, and Other Flashpoints Between Estate Litigation and Estate Administration - by David M. Smith
- Ethical issues for the Estate Planners - by Ian M. Hull and Suzana Popovic-Montag
The September 22nd Breakfast Series has been accredited by the Law Society for 30 minutes toward the annual Professional Requirement and has been accredited by the Law Society for 60 minutes toward the annual New Member Requirement.
Breakfast Series presentations are held at the Ontario Bar Association facilities at 20 Toronto Street, Toronto. If you are not able to attend in person, you can dial in for live audio or view the presentation from your PC via live webcast.
Click here to register or contact Diane Labao at 416-369-1140 or by email to dlabao@hullandhull.com.
Copies of papers and video from our previous Breakfast Series presentations are available on our website.
We look forward to having you join us on September 22nd.
More Practice Gems: Administration Where There Are Claims Against the Estate
Yesterday, I blogged on the September 14, 2011 LSUC CLE program entitled “Practice Gems: The Administration of Estates 2011: Avoiding the Pitfalls. This excellent program featured a number of great speakers. The program is being repeated on October 31, 2011, and I highly recommend it.
Another speaker was our own Craig Vander Zee. Craig spoke on the topic of administering an estate where there are claims made against the estate, such as claims for equalization under the Family Law Act, dependant support claims under Part V of the Succession Law Reform Act, or trust claims, such as claims involving jointly held assets, or quantum meruit claims.
Such claims necessarily complicate the administration, and give rise to a number of issues and considerations on the part of the Estate Trustee. Craig’s paper addresses a number of these issues, including the nature of the claim, what procedural steps must be taken to defend the claim, representation and notice to all of the interested parties, limitation periods, and the thorny issue of costs.
Thank you for reading, and have a great weekend.
Paul E. Trudelle - Click here fore more information on Paul Trudelle.
Estate Administration Gems: Solicitor's Checklist
Yesterday, I attended at a seminar put on by the Law Society of Upper Canada entitled “Practice Gems: The Administration of Estates 2011: Avoiding the Pitfalls”. (There is a repeat performance scheduled for October 31, 2011: see details here.)
One of the presenters was Clare Burns. She has prepared an excellent checklist for solicitors advising estate trustees. The checklist covers topics such as the first interview with the client, reviewing wills, codicils and affidavits of execution, preparing and delivering initial report to the client, determining the estate assets and liabilities, applying for the Certificate of Appointment, realizing and distributing the estate, and preparing the final report to the client. Under each heading, there are detailed descriptions of matters to be considered.
Ms. Burns has advised that she hopes to have the checklist available on the LSUC website shortly.
Solicitors are encouraged to download the checklist, and personalize it and expand to it according to their needs and experience.
The benefits of using a good checklist cannot be overstated. They are an essential tool in any practice.
Thank you for reading.
Paul E. Trudelle - Click here for more information on Paul Trudelle.
Retirement: Good News and Bad News
A recent article by Ted Rechtshafen in the Globe online edition encourages us to think about our retirement prospects, and plan for them.
The author notes that in 1921, the average life expectancy for a Canadian male was 58.8 years, while the mandatory retirement age was usually 65. At that time, financial planning for retirement was not an issue for most.
Good news: life expectancies have gone way up. Bad news: we now need to plan for a (hopefully) much longer retirement. Most Canadians should plan for, conservatively, a 30-year retirement!
Planning for retirement means considering the following basic questions:
-Do I need to think about ways to work beyond age 60-65?
-Am I saving enough for retirement?
-What is my world going to look like in 25 years?
The article contains links to tools such as a detailed “How long will I live” calculator. The calculator is eye-opening and instructive, and worth a visit. Other links include a “How much money will I have at the end” calculator, which estimates the value of your estate, assuming you live to a full life expectancy. Again, eye-opening.
Thanks for reading.
Paul E. Trudelle - Click here for more information on Paul Trudelle.
Hull on Estates # 261 - S. 37 of the Substitute Decisions Act
Listen to: Hull on Estates # 261 - S. 37 of the Substitute Decisions Act
This week on Hull on Estates, David Smith and Nadia Harasymowycz continue their discussion from a previous podcast on the obligation of an attorney under a power of attorney for property and personal care.
If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Never Forget a Face
Cremation Solutions has come up with “a new and exciting way to memorialize your loved one.”
The company offers a number of cremation urns and other mementos. One of their most notable products is the “Personal Cremation Urn”. The company offers to create a custom cremation urn in the image of your loved one, favourite celebrity, hero, or even President Obama.
The urns are made from a tough polymere compound, and come on a solid marble base. The company will create the urn using a photograph or two of the subject.
Cremation Solutions says that the urns can have hair added digitally for short haired people, or, for longer haired subjects, a wig can be added.
The urns come in two sizes: full size, 11” tall (to hold the ashes of an adult) or keepsake sized, 6” tall, to hold a portion of the cremated ashes. Full size is $2,600 US, and keepsake sized is $600 US. Delivery is free.
Thank you to Gerry Beyer and his blog Wills, Trusts and Estates Prof Blog for the reference.
Have a great week.
Paul E. Trudelle - Click here for more information on Paul Trudelle.
Who's Your Daddy?
I recently blogged about a court decision from British Columbia dealing with sperm donation and the right of a child, born with the assistance of a sperm donor, to his/her 'father's' personal information. It should come as no surprise that the issue seems to be at the forefront of the news once again; yet this time, the world is focused on the sheer number of children born to each sperm donor, which somewhat shockingly can be in the hundreds.
The potential for legal issues relating to the various modern fertility possibilities abound. Laws, both statute and common, tend to be inherently a few steps behind science. Like the little sibling you were always trying to shake, we are constantly playing the game of catch up, trying to deal with the 'next frontier' and making sure that the societal impact is as reasonable as possible.
Whether legislatures are prepared to enact laws that regulate sperm donation, and whether the BC case law finding will make its way through the rest of the provincial courts to the same end, reaching through the various fields to ours, is something I wouldn't want to speculate on.
For now, it seems that children born of sperm donors have no claim on the Estate of their deceased 'father'. Certainly though, the topic is interesting enough, and with the right case, the right story, the right counsel, and the right time, law reform will happen. In what direction, and on what specific point, you'll just have to stay tuned to find out.
Thanks for reading, have a great weekend,
Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
Do You Know What You Own?
As with many stories in this field, this one begins with the death of two spouses. On the death of the second spouse, Mrs. Irene Korhumel, the assets of her Estate were catalogued and included a landscape painting by Pierre-Auguste Renoir. The painting had been bought at a New York gallery in 1956 and hung in the family home since. Art appraisers have indicated that an attempt at valuing such artwork is not possible without detailed research, but it would seem that it certainly has significant value. Ms. Korhumel’s Estate has taken steps to sell the painting at Auction.
This seems like a simple story, and one that Estates deal with every day. However, as with every good story, there has to be a catch, a turning point if you will, and in this instance, that turning point is a possible claim by the heirs of a previous owner of the painting, a textile mogul from Germany, whose heirs are contemplating a claim for ownership of the painting.
You may be asking yourself: Is that possible? Didn’t they buy the piece at an art gallery? Didn’t they own it for years? On what basis is this claim being brought? All of these are good and interesting questions. The answer, I promise you, is even more interesting.
Mr. Richard Semmel, a German Jew, and the textile mogul in question, owned the painting at the time he was compelled to leave Nazi-occupied Germany prior to World War II. Mr. Semmel began to sell off his art collection in 1933, and the Renoir painting was purportedly part of this collection.
The argument that is expected to be advanced is that Mr. Semmel was forced to sell his collection to finance his safety and escape. Mr. Semmel was not the only person who disposed of his assets in this manner over half a century ago, and some have estimated that there are over 600,000 pieces of art which were taken or disposed of by the Nazis. Project HEART has attended to tracing and compiling a database of property lost in this manner, including many pieces of art, leaving the question open as to how many other potential claims are out there.
This argument has been used before; when Semmel’s heirs were successful in compelling the Dutch government to return to them a painting that had previously hung in the national museum. In this instance, a formal claim by the Semmel heirs has not been commenced, but is being considered. In what appears to be a pre-emptive move, the Korhumel Estate has filed a federal lawsuit in Chicago, seeking official rights to the painting.
Depending on the outcome of this litigation, it may be that art collectors will be taking a closer look at their collections, and Estate Planners will be asking if you really know what you own.
Thanks for reading,
Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
Exploring Resources - Hull on Estates and Succession Planning
This week on Hull on Estates and Succession Planning, Ian and Suzana acknowledge Hull & Hull's recognition in the CBA National Magazine article "The Best in Digital Marketing." Additionally, they discuss a new Ontario based resource Will Finder. This new and innovative site is a user friendly application that has been made available to clients and lawyers alike.
If you have any questions or comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Planning for your Elder Years
I recently received a copy of the New York State Bar Association Journal (“Journal”) and was pleased to discover that the summer issue was dedicated to Elder law. Unfortunately, the entire Journal is only available online to members of the bar association[1]. Still, I’d like to address two points made throughout the Journal, as it seems that the issues we faces as our most populous generation ages are consistent across the border.
One of the most compelling articles that I read, spoke of the issues parents face when they have adult children who are themselves in need of lifelong support and supervision. At a recent Hull & Hull LLP breakfast series, a presentation was given on guardianship and the process of being appointed in such a role. If you have undertaken the role of a guardian for your child, or if you have been helping an adult child who has capacity, but who requires extra assistance, such a role, and who might fill it, ought to be considered when planning your own Estate.
Another article of interest related to ‘snow-birds’, those who enjoy the winters in the south and the summers up north, a phenomenon also prevalent in Ontario. In such a situation, property ownership and disposition can be particularly challenging. Understanding the nuances and requirements of each jurisdiction in which you own property, and ensuring that your estate plan, including any power of attorney documents you have, cover such assets, is a worthwhile undertaking.
Take the time to consider your estate plan, and how your estate will address any specific issues created. The short term time expended is minimal, but the long term gain can be substantial.
Until Tomorrow,
Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
[1] If you are interested in seeing a hard copy of this issue of the Journal, and I would recommend it for anyone in the field, the Great Library at Osgoode Hall maintains a subscription.
Hull on Estates #260 - Case comment on Kazarian v Fraser
Listen to: Case comment on Kazarian v Fraser - Hull on Estates #260
This week on Hull on Estates, Paul Trudelle and Natalia Angelini discuss the recent case Kazarian v Fraser. More specifically, they discuss the issue of costs.
If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Moral Obligations - Some Further Exploration
The British Columbia Supreme Court in Laing v. Jarvis 2011 BCSC 1082, recently spoke of the issues surrounding the moral obligations of a Deceased.
This matter was brought before the courts by the plaintiff, Ms. Laing, the daughter of the Deceased. The Deceased had passed away on June 3, 2007 and was survived by her son, Mr. Jarvis, the defendant, and Ms. Laing. The Deceased left a Last Will and Testament dated December 10, 2003, which named her son as the sole beneficiary and Estate Trustee. Ms. Laing was completely disinherited.
Ms. Laing sough a variation of the Will under the Wills Variation Act, RSBC 1996, c. 490, s. 2, which section provides the British Columbia courts with the jurisdiction to amend a will, where it is determined that the Deceased made inadequate provision for the maintenance and support of her children or spouse under her Will.
As Mr. Jarvis did not take steps to obtain Probate, the Province was appointed as the official administrator with a Will annexed on June 8, 2010. This matter appeared before the court with little documentary evidence, and without the benefit of Mr. Jarvis’ presence. Upon a thorough review of the family history, the Court determined that the two children of the Deceased ought to be treated equally. However, the Court went further and commented on Mr. Jarvis’ actions and lack of involvement in the administration of the Estate, and made an order that the costs incurred as a result of his inaction ought to be borne by him personally and not by the Estate. This matter is to be brought back before the Court for a determination as to the final disposition of the assets of the Estate, once they have been fully identified.
Although Ontario does not have legislation in the exact same vein as the Wills Variation Act, we are certainly seeing the Courts give more credence to the ‘moral obligation’ consideration.
Thanks for reading,
Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
A Posthumous World Tour
The manner of disposition of one's remains is a personal choice. In Ontario, the executor has the right to make that determination, it being understood that any directions given by the testator are morally, but not necessarily legally binding on the executor.
A unique circumstance was recently reported in the Star.com.
As reported in the Star: Deb Green "put in an ad in Vancouver’s Craigslist this month asking people to help [her deceased parents] Alice and William experience a bit of the world. The ad read: “Both of my parents are now dead and the one thing that they always wanted to do was to travel. If you are traveling somewhere and are willing to take a little of my mom and dad and sprinkle them and take a picture, then please contact me.”
Green has apparently received the agreement of at least one individual to take a vial of ashes on a trip to Vancouver and take a picture.
David M. Smith - Click here for more information David Smith.
Common Law Spousal Property Entitlements Prior to Death
The recent Supreme Court of Canada case of Kerr v. Baranow recognized common law relationships and gave guidance on the appropriate approach to address property and compensation claims in such relationships.
Unlike married spouses, there is no legislative scheme for common law couples to determine property division upon the breakdown of a relationship.
Following a relationship breakdown, one common law partner may claim that the other would be "unjustly enriched" if permitted to retain certain property without some kind of monetary compensation or without some sort of ownership interest in the land or investment. Typically, the aggrieved partner advances a “resulting trust” claim.
The Supreme Court decided that, to establish an unjust enrichment claim, the claimant must show: (i) that there was a joint family venture and (ii) that there is a link between his or her contributions and the accumulation of wealth. Whether there is a “joint family venture” depends on such factors as:
- mutual effort (i.e. whether the parties worked collaboratively towards common goals);
- economic integration (i.e. joint bank account/ sharing of expenses or common savings);
- actual intent express or inferred; and
- priority of the family (i.e. detrimental reliance on the relationship, by one or both parties, for the sake of the family).
David M. Smith - Click here for more information on David M. Smith.
