Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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Over the Christmas break, a news story out of Winnipeg captured national headlines. Samuel Golubchuk is 84 years old and on life support in Winnipeg’s Grace Hospital. He apparently suffered a brain-injury from an earlier fall and part of his brain was removed at the time. Tragically, Mr. Golubchuk cannot walk, speak, eat or breathe on his own. His treating physicians say Mr. Golubchuk has no chance of recovery and that his quality of life is negligible. They want the right to remove him from life support. The news stories don’t indicate whether Mr. Golubchuk left a power of attorney or end-of-life instructions.

Mr. Golubchuk's family has gone to court to resist any attempt by the hospital’s doctors to remove him from life support. Mr. Golubchuk’s family claims that removing life support would violate Mr. Golubchuk's orthodox Jewish belief and amount to an assault as it would hasten his death.

In early December, the family was granted a temporary court injunction while a local judge considered the case. In January, the family returned to court and presented two opinions from New York doctors. According to the family’s doctors, Mr. Golubchuk was not beyond hope. 

The family has maintained throughout that it is a matter of self-determination and the right to live in a free and democratic society without an outside party making decisions for you. The hospital, on the other hand, maintains that it is up to the treating physician to make a judgment call as to whether or not life support should be removed.

As far as I can tell, the judge hearing the case has still not decided what will happen to Mr. Golubchuk. However, it is clear that the courts struggle with life and death decisions as much as guardians or family members do. There are simply no easy answers. In the end, I think it is difficult to say how any one of us would act or react when confronted with the ultimate decision.

Keep thinking and thanks for reading.

Justin

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Mediation is a common occurrence in estate litigation. Mediation is also popular in other areas, including family law and even commercial litigation. When choosing a mediator, I look for the following characteristics:

• Knowledgeable (has to know the law)
• Experienced at mediating (too many “wannabes”)
• Litigation savvy (knows the true costs and challenges of litigation)
• Empathetic (a good, sympathetic listener is a must)
• Diligent (a mediator has to know the issues and subtleties)
• Firm (a mediator has to know when to read the “riot act”)
• Stamina (mediation is often a marathon)
• Adaptable (a mediator wears many hats)

If the other side suggests a mediator you’ve never heard of, ask around. What do your colleagues think and what is the mediator’s reputation like? To be honest, I’m never too quick to agree to a mediator suggested by opposing counsel if I don’t really know their style and reputation. Opposing counsel may have a comfort level with the mediator or know something you don’t that could work against your client. 

By keeping the above characteristics in mind and doing your homework, you and your client will likely have a better chance of satisfactorily settling the dispute.

Thanks for reading, Justin

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Welcome to my week of blogs.  I hope you enjoy the eclectic mix of topics and issues that I will blog on this week.

I recently came across a case that considered the doctrine of abuse of process. While it was a family law dispute, the case nevertheless caught my attention as abuse of process cuts across all areas of the law, including estate litigation.

The Supreme Court of Canada had this to say about abuse of process:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.

As can be seen from the above passage, the focus of the abuse of process doctrine is on the integrity of the judicial process and not on the motive, however dishonourable, or status of the parties. 

In the context of estate litigation, where emotions are often raw and grievances long held, a party to an action cannot be blinded by perceived motives when considering whether to strike a claim as an abuse of process. 

The best way to approach abuse of process is to consider claims that the court has held to be an abuse of process. A good example is where a party re-litigates a claim, however disguised, solely to achieve a more favourable judicial result or harass the other side.  Such a case is both manifestly unfair to the defendant as well as bringing the administration of justice into disrepute.  

The real attraction of the doctrine of abuse of process is its flexibility and the latitude it provides the court in its application. However, as with all procedural or early motions, it is often a difficult case to meet. The facts must be clear in order to successfully argue that a claim should be struck as an abuse of process. 

Justin

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Yesterday's Breakfast Series was very informative (and the breakfast is always a nice treat!).

Suzana Popovic-Montag started off the seminar with an instructive talk on trust issues in an estates context.  Her discussion of leading and recent case-law examining a trustee's discretion to encroach on capital, including Gisborne v. Gisborne (1877), 2 A.C. 300 (H.L.) and Fox v. Fox Estate, included the following observations:

• the Court will not interfere with the exercise of a trustee's discretion to encroach on capital in the absence of mala fides
• the term mala fides should be interpreted with some flexibility
• mala fides is more than just a category of fraud; it includes any act by an executor which is based on matters/considerations "extraneous" to the purposes of the testator
• the question as to the extent of a beneficiary's personal resources should, at first instance, be irrelevant

Suzana gleaned from her review of the authorities that the Court's overwhelming view seems to allow for the broad exercise of discretion on an unfettered basis (presuming the Will provides for it) and the Court will only reluctantly limit that discretion.

Craig Vander Zee followed with an interesting discussion on the removal and/or replacement of a trustee, and Ian Hull spoke about various estate law remedies applicable to estate administrations.  Their papers contain a thorough consideration of these topics that I unfortunately do not have sufficient space in this blog to touch upon.

Have a great weekend!

Natalia

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In Reviczky v. Meleknia, a house was "sold" (unbeknownst to the true owner) by a person acting under a fictitious power of attorney and posing as the applicant’s relative.  The purchaser, an innocent third party, financed most of the purchase price through a mortgage registered on title.  Although the purchaser conceded that he did not have good title, the bank that financed the transaction nonetheless took the position before the Court that its mortgage was valid.  

The lawyer representing the "vendor" sent a copy of the power of attorney to the lawyer acting for the buyer and the bank.  The power of attorney was dated just one month before the sale closed, the donor was over 88 years old and it was only witnessed by one person.  Both lawyers were unaware the document was forged. 

The solicitor for the buyer and the bank did not take any steps to learn about the form, content or validity of the forged power of attorney.   It was held that because the solicitor took no steps to scrutinize the document the bank’s mortgage was void.

It will be interesting to see how this case is applied.  I wonder if it will impact on a solicitor’s duties to “go behind” a power of attorney i.e. where a power of attorney has been signed recently and/or the donor is elderly, must a solicitor ask about the donor’s whereabouts, mental capacity at the time of signing, mental capacity at the time the power of attorney is being acted on etc.?

Thanks for reading,

Natalia

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An offer to settle made pursuant to Rule 49 of the Rules of Civil Procedure can be an extremely effective mechanism to secure a better costs order (see Rule 49.10).  Most offers made outside the ambit of the Rules can also be very helpful to the offeror from a costs standpoint, particularly if such offers (like Rule 49.10 offers) demonstrate that it would have been better for the recipient of the offer to have accepted it. 

However, a low ball offer made at the last minute may have little or no beneficial impact whatsoever.  In Volchuk Estate (Re), a contested passing of accounts application, where such an offer was made by the respondent, the court held that the offer did not have any influence on the quantum of costs that should be ordered to be paid. 

Several factors in discretion under Rule 57.01 that are to be considered by a court when making costs decisions will also likely impact on the quantum of a cost award.   In this case, for instance, the respondent was found not only to have failed to properly account for his activities as attorney for the deceased, but also to have misappropriated funds of the deceased during his lifetime.   While the principal amount of the Judgment against him was in the amount of approximately $40,000, the costs Order rendered exceeded $100,000. 

Thanks for reading,

Natalia

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In guardianship disputes, unlike other estate litigation, you are dealing with a living person, whose needs and wishes must be kept in mind at all times.   For this reason, thorough contemplation of how to approach the case is important to undertake at the outset.

Felice Kirsh recommended some early considerations to keep in mind at the 10th Annual Estates and Trusts Summit, which include the following:

• Think before you start - A guardianship application is a drastic step. Even a consent application will be scrutinized by a judge and medical evidence will likely be required, as the court is trying to protect a vulnerable person who, in effect, is having his/her independence taken away.
• Representation of the incapable person - The incapable person is deemed to have capacity to retain and instruct counsel (section 3(1)(b) Substitute Decisions Act).  If this is not addressed at the outset by counsel, the court will often order representation for the incapable person prior to dealing with the substantive issues.
•  ADR Options - It may be possible to resolve a guardianship dispute (relating to a person over 18 years of age) by having him/her sign a new Power of Attorney.  Other means for resolving such disputes are for the parties to agree to attend a family meeting or mediation as early in the process as possible.

Given the cost and emotional nature of guardianship litigation, I hope these points provide helpful reminders of the caution that should be exercised in these matters. 

Have a good day,

Natalia

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In keeping with the holiday season which has just ended, many of us can reflect on the gifts we received from family members and friends. Often, the sentimental attachment far exceeds the monetary value of the gift. To this end, a testator may make a specific bequest in her Will indicating that upon her demise, a valuable family heirloom is to be given to a close relative.

Interestingly, the question arises about what happens when the testator dies and the specific bequest is not found among the assets. Based on the principle of ademption, the gift is said to "adeem" or fail. In certain circumstances, however, the testamentary gift will not adeem. For example, ademption does not apply where it can be shown that the gift was intended to confer general economic benefit on the beneficiary. Secondly, the gift may not fail if the testator's intention was not to revoke the gift if it could not be found.

It is not surprising that the principle of ademption may cause bitter disagreements among once close family members. While this dispute can be resolved through counsel, the reality is that the testator would be appalled to know that her Will led to fragmentation of the family. While most of us do not want to envisage our own mortality, careful succession planning may eliminate family feuds and afford the testator the opportunity to explain her intentions to the rest of the family. A meaningful discussion with family members about succession planning may ultimately prevent protracted litigation.

Thanks and have a great day,

Allan Socken

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The administration of an estate encompasses a significant portion of most estate solicitors' practices. Even if the estate is being competently administered, it is still possible that many remedies which would be useful for the beneficiaries could be overlooked in the process. It is for this reason that even the most seasoned estate practitioner may encounter difficulties.

One issue that comes to mind is what remedies are available to the beneficiaries of an estate when a Will is lost? Is a photocopy of the Will sufficient? What if those with a financial interest in the estate object to the granting of a Certificate of Appointment of Estate Trustee With a Will? Is it possible to compel production of the deceased's testamentary documents?

To find out more about these and other related issues, please mark your calendar and register for Hull & Hull LLP's upcoming Estate, Trust and Capacity Law Breakfast Series scheduled for 8:30 a.m. Thursday, January 17, 2008 at the Ontario Bar Association (2nd Floor, 20 Toronto Street, Salon 2 & 3). This program will feature three presentations by our firm's lawyers on the following topics:

Ian Hull will discuss "Estate Law Remedies - What to watch out for when administering an Estate";
Suzana Popovic-Montag will present "Can I encroach and, if so, how? Trust issues in an estates context"; and
Craig Vander Zee will speak on "Considerations in Negotiating the Removal and/or Replacement of a Trustee."

For more information about the upcoming breakfast series and to obtain a copy of the registration form, please click on http://www.hullandhull.com/news_and_events.html.

I look forward to seeing you there.

Allan Socken

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The Canadian Law Blog Awards ("Clawbies") promote Canadian legal talent on the internet. You may access the website at http://www.clawbies.ca. Recently, Clawbies issued "awards" for, among other things, the "Best Practitioner Support Blog."

The Clawbies website was created by Steve Matthews, founder and principal of Stem Legal, a company that has helped to bring web visibility to the legal community. Given the ubiquitous impact of the internet in disseminating information that was once only available in print form to the general public, it is no surprise that blogs and podcasts have achieved such great popularity. Of course, these technological advancements now afford the legal community the opportunity to discuss current legal issues on the World Wide Web.

With regard to the outcome of the awards, Garry Wise was awarded the "Best Practitioner Support Blog." According to Clawbies, Mr. Wise blogs on a wide variety of topics and, in particular, has provided useful advice to many sole practitioners. The runners up for this award were David Fraser's Canadian Privacy Law Blog and our blog, Hull & Hull LLP's Toronto Estate Law Blog.

Congratulations to Mr. Wise and Mr. Fraser on these "awards"! We are also proud of our recognition, and more importantly, that our blog and podcast series make a valuable contribution to the Canadian legal community.

Thanks and have a great day,

Allan Socken

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I am currently working on my Master of Laws in Alternative Dispute Resolution ("ADR"). When my peers discovered that I practice estate, trust and capacity litigation, they were surprised by my decision to pursue this degree. After all, a litigator is thought to spend the vast majority of time in court. In reality, 99% of all legal disputes are settled outside of court. Indeed, I find mediation to be an effective form of ADR.

The process of mediation is overseen by a non-partisan third party whose authority rests on the consent of the parties. The mediator endeavours to facilitate the development of consensual solutions by the disputing parties and has no independent decision-making powers. Many strategies and techniques are used to encourage the parties to reach a successful agreement. Finally, mediation creates conditions under which parties conclude a successful negotiation.

Mediation can be an especially effective tool in settling estate disputes. Generally, it is far more expeditious and economical in resolving even the most contentious matters. It allows the parties to discuss their conflict in a confidential and private environment. Furthermore, mediation provides the parties with the ability to craft their own solutions, as opposed to an imposed court Order.

The most compelling reason to attempt mediation is because it offers the best opportunity for family members to move beyond the bitterness and resentment and perhaps repair previous relationships.

Thanks and have a great day,

Allan Socken

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It was recently reported that five of James Brown's children have commenced legal proceedings to challenge the validity of the legendary singer's Will on the basis that his former advisers unduly influenced him to create charitable trusts from which the advisers would profit.

The children were largely excluded from the Will and the vast majority of the money was left in trusts to educate Brown's grandchildren and to assist needy children. This ensuing Will challenge proceeding affords estate practitioners the opportunity to review their own practices when drafting Wills.

Although it is virtually impossible to eliminate the prospect of a Will challenge, there are steps that can be taken that may enable the estate practitioner to propound the Will. For example, in instances where no provisions have been made for close relatives as beneficiaries, further inquiry may be necessary, together with clear and comprehensive solicitor's notes.

When drafting Wills, estate practitioners may also wish to ascertain whether the Will the client wants drawn up differs substantially from previous testamentary instruments and if so, why? Only through careful inquiry may a prudent solicitor glean her client's true testamentary intentions.

While these suggestions by no means form an exhaustive list of all necessary steps to be taken prior to the drafting of the Will, the foregoing does provide helpful pointers that could mean the difference between the Will being successfully propounded or overturned.

Thanks and have a great day,

Allan Socken

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Each year the Ontario Bar Association (OBA), Trusts and Estates Section, considers candidates for its Award of Excellence. Last year, the Section paid tribute to Brian Schnurr as the recipient.

The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates.

Any Trusts and Estates Section member of the OBA in good standing, as well as former members of the section who have retired or been appointed to the bench, but not including current officers of the Executive of the Trusts and Estates Section or the Executive of the OBA, are eligible to be nominated.

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Estate planning and estate litigation have become more complex because of the dynamic of today’s family and the financial consequences that accompany that dynamic.

This year’s OBA Annual Institute Trusts & Estates program looks at how planning can work or not work (and how litigation may arise), depending on the steps taken by the players involved and especially by those who might end up thwarting it. Topics include the changing dynamic of the family and its effect on the estate, support claims in broken and reconstituted families, administering the family company through a trust or estate or as an attorney, dealing with clients with diminished capacity, estate planning and protection for disabled persons, DNA in estate matters, organ and tissue donation, when charities are part of the plan, income splitting and attribution, the latest on joint assets and secret trusts and other planning for “secret” friends and relations. 

The title of this year’s program is “The Estate Plan: Dynamic or Dynamited?”

As Co-Chair of this year’s program, I can say that this program is a must-attend for estate planners and estate litigators.

The presenters include Jordan Atin, Clare Burns, Barry Corbin, Sheila Crummey, Dana De Sante, Ian Hull, Hilary Laidlaw, Sabina Mexis, Jim O’Brien, Archie Rabinowitz, Brian Schnurr, Liza Sheard, Dr. Michel Silberfeld, Clare Sullivan, Jim Sweetlove, Corina Weigl, Kim Whaley and Susan Woodley.

The program is a full day on Tuesday, February 5, 2008, starting at 9:00 a.m. To register for the program, contact the OBA at (416) 869-1047 or 1-800-668-8900 or email www.oba.org.

I hope to see you there.

Craig

 

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I hope everyone had a great holiday.

With the close of 2007, we turn and look to the promise of 2008. In looking ahead to 2008
many may wonder if they have properly protected and provided for those they intend to protect should something unexpected happen to them. Questions may also arise regarding whether a spouse or parent has taken steps to provide for themselves and/or those they intend to provide for.

While there are no doubt many things to consider for the new year from a family perspective, perhaps this is the year to resolve to consider, or reconsider, whether your family’s legal affairs have been properly planned.

I wish everyone a healthy, happy and prosperous 2008.

Craig

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This is our last blog of 2007!

Thank you for reading our blog posts over the past year. We have enjoyed preparing them. We hope that we have been informative.

As always, if you have any questions, comments or suggestions, please fell free to contact any of us. Your feedback is always appreciated.

We look forward to continuing our posting in the new year, and hope that you will continue reading. Our blog posting returns on January 2, 2008.

On behalf of everyone at Hull and Hull LLP, I would like to wish you a very happy holiday, and a wonderful new year. We hope that you have a safe, restful holiday. Take some time to reflect on the past year, and to resolve for better new year.

Season’s Greetings and Happy New Year.

Paul Trudelle

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Interest is normally paid on the proceeds of a policy of life insurance thirty days after the insurer receives sufficient evidence of the claim. The requirements are mandated by statute. What happens, however, where the insured “disappears”, and the beneficiary brings an application for a declaration of death? Is interest payable from the date of death (as declared by the court), or from the date of the declaration itself?

This issue was considered by the Court of Appeal of Manitoba in Antonation v. Sylvester, 2007 MBCA 110 (CanLII). There, the “deceased” disappeared on May 29, 1998. In May 2005, the beneficiary under a policy of insurance on the deceased’s life brought an application for a declaration that the deceased was presumed dead because of the passage of seven years from his disappearance. The court granted an Order on July 4, 2005 declaring that the deceased “shall be presumed to have died on May 29, 1998.”

The proceeds of the insurance policy were paid to the beneficiary within 30 days of the date that the court made the declaration: July 4, 2005. However, the beneficiary claimed interest from the date of disappearance (ie. the date of death as declared by the court: May 29, 1998).

The Court below and the Court of Appeal both held that no interest was payable until 30 days after the date upon which the declaration of death was made. This declaration was part of the “sufficient evidence” that the insurer required in order to trigger the obligation to pay under the applicable legislation. Until this declaration was made by the court, there was no obligation on the part of the insurer to make the payment.

The legislation in Ontario is essentially similar to the applicable Manitoba legislation considered by the court. In fact, the Court of Appeal of Manitoba relied on an Ontario Divisional Court case directly on point.

Thank you for reading.

Paul Trudelle

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As estates lawyers, we interact with clients dealing with the loss of a friend or relative on a daily basis. In our role as estate litigation counsel or in advising on the administration of an estate, we can easily overlook the very real and emotionally charged aspects of coping with a loss.

The other day, I came across an excellent series of web pages posted by the BBC. Entitled “Coping with Grief - Bereavement”, the feature provides information and advice on dealing with the emotional and physical effects of bereavement. The pages address the physical effects of grief, how bereavement effects adults and children, coping with sudden and unexpected death, the death of a child, the death of a parent, the death of a spouse, the death of a friend, and even the death of a pet. Other pages discuss how to help others through grief, and how to help children and answer their questions.

The pages include numerous links to other resources.

I commend this highly informative series to you. 

Thank you for reading.

Paul Trudelle

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Yesterday, I set out a fact situation giving rise to a certain interpretation issue.

The fact situation is based on the decision of Moore J. in Rudling Estate v. Rudling, 2007 CanLII 51794 (Ont. S.C.).

There, the court held that the word "debt" in relation to Property B could not include within its meaning all of the taxes, expenses and other charges that the estate trustee is directed by the will to satisfy in addition to "debts" of the estate. The court found that all reasonable charges against the estate arising from the death of the deceased were, by the terms of the will, intended to be paid from the estate before the specific bequests of the two properties are made. That is, both A and B are to share the burden of the testamentary expenses.

The court found that the will could be fairly construed upon the language contained within its four corners, and without the need to resort to extrinsic evidence in order to interpret the meaning.

However, in light of the Orders Giving Directions made in the case, and the issues is raised in the pleadings, and “because I am aware of the recent tendency of Canadian courts to apply the ‘armchair rule’”, the court also addressed the interpretation of the will in light of the surrounding circumstances. The court examined the surrounding circumstances, hearing from ten witnesses over the course of seven days. After considering this evidence, the court concluded that the evidence did not support a conclusion that the testamentary expenses be borne by A alone.

Did you make the right call?

Paul Trudelle

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Consider the following interpretation issue, which was recently considered by the Ontario Superior Court of Justice:

The deceased left a will kit-type will directing that all “just debts, funeral and testamentary expenses, all succession duties, inheritance and death taxes, and all expenses necessarily incidental thereto, to be paid and satisfied by” my executor as soon as convenient after her death. 

The will went on to provide that the following distributions were to be made:

To son A, Property A "with all loans, leins [sic], mortgages attached”.

To son B, Property B, “free and clear of all debt". 

The residue was to be divided between A and B. For the purposes of the trial, the only assets of significance were the real estate: Properties A and B.

At the time of her death, the deceased had no debt other than certain mortgages registered on title against Property A.

The issue in dispute was what assets were to be chargeable for paying the deceased's taxes, including estate administration tax and income taxes, and funeral and testamentary expenses.

A took the position that these expenses were paid out of the residue, and in the absence of any residue, were to be chargeable equally as against Property A and B. (Properties A and B were of equal value.)

B took the position that Property B was conveyed to him "free and clear of all debt", and thus, those expenses were payable out of Property A only.

What did the court do? Tune in tomorrow.

Until then, thank you for reading.

Paul Trudelle

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A few days ago I briefly commented in my blog about knowing the value of one’s assets when completing an estate plan. As clear a picture as possible, it seems to me, is helpful to the testator. 

One benefit is that being able to prove after death that the testator knew the nature and extent of his/her assets will help in claiming the Will is valid.

A hypothetical scenario may be helpful to imply some of the seemingly endless issues which can arise: a testator wants basic equality among three children, with some caveats. The eldest child is to receive the cottage he and his children love so much. The middle child loves a painting whose value is understood to be very high, and which was bought for next to nothing before the artist rose to prominence but has never actually been appraised. The rest of the estate, mostly made up of the testator’s condominium, goes to a third child. 

The testator is ‘pretty sure’ that makes for a fairly even division, and also that his/her estranged sibling’s claim that the cottage belonged to their parents who wanted it to go to the survivor of the two of them ‘won’t amount to much’. The testator has not considered tax and other consequences of transferring the various assets after death.

This scenario may well seem perfectly simple to the testator. However, to a solicitor it might not seem quite so simple. The tax consequences which arise regarding each asset could be very different. The values of real estate may have changed dramatically since the testator purchased it. Values of art, in my very limited experience, are quite difficult to assess with any certainty until the art is sold. The children's likes and circumstances may be different than the testator believes, or could change over time.

These issues are only the beginning... 

Thanks for reading.

Sean Graham

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Perhaps the most emotionally trying duty of an Estate Trustee is making burial and memorial arrangements.

This can be doubly so where family members have different views and priorities than the Estate Trustee. When the source of those views is religious differences, compromise becomes well-nigh impossible. Families can break apart, never to reconcile.

Into this fray, lawyers inevitably become part of a terribly combustible mix. Eventually, a dispute can reach the Courts.  When it does, family members who believe they know, regardless of the Estate Trustee’s plans exactly what a deceased wanted may be shocked to find that their recollections and most sacredly-held beliefs give way to the Estate Trustee’s power to decide.

This, I believe, must be so. A Judge is in no better position to decide how to honour a deceased than warring family members, and perhaps a worse position since he or she would likely not have even known the person.

One more reason to be careful when choosing an Estate Trustee, and clear when telling him or her your wishes.

Thanks for reading.

Sean Graham

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It strikes me as ironic that the prosecution of Conrad Black has caused barely a ripple in the US media (at least from what I can tell), but will probably prove to be the most talked-about and reported on case in the Canadian media this year, if not in many years.

Of course that has as much or more to do with Conrad Black's personality and impact on Canada and the Canadian media than the legalities of his case. I won't bore anyone with my opinion, but opinions are not in short supply. Here's Diane Francis's. (From the National Post).

It seems to me there are some parallels to civil, and certainly estate litigation, although the stakes are generally much lower. In many cases the expenses of the legal fees reduce the amount of funds available at the end of the day, leaving many parties at the end of the day, even if successful, with a sour taste in their mouths about the justice system.

Thanks for reading,

Sean Graham

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Having just returned from a week in Miami, I am still shaking my head at the nasty situation Florida is facing with real estate prices.

A few years ago, the Miami market in condominiums was steaming along, demand was stratospheric and buildings were going up left right and centre, with no apparent end in sight.

Then came the hurricanes that hit the gulf coast and now the sub-prime mortgage problems. What a change: now there is no apparent end in sight to difficulties finding buyers.

Real estate agents I happened to speak to were alomst desperate in asking why, with the Canadian dollar so strong, more Canadians are not buying winter properties in Florida. Strong Dollar or not, Canadians not buying in Florida seem to be in good company, because very few other people seem to be buying either.

It struck me that these sorts of dramatic fluctuations are going on all the time with respect to assets of all shapes and sizes. Sometimes owners of real estate do not even know about reduction or increase in the value of their property until they decide to sell it, at which time they recieve a delightful or nasty surprise.

Of course, nobody has a crystal ball about these things, least of all estate planning lawyers. However, to the extent misapprehension of the values of assets may be affecting the planning process, you cannot go wrong advising clients to obtain appraisals of key assets before they sign their wills, not to mention suggesting they obtain periodic estimates afterwards, then turning to further advice as to planning changes which may be prudent if values have changed dramatically.

Thanks for reading,

Sean Graham

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Listen to Probate Issues and Requirements

 

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Last week saw the sudden passing of John (Iain) Richard Connolly. Mr. Connolly died on December 4, 2007 at the age of 61.

Mr. Connolly was a well-respected Deputy Judge with the Ontario Small Claims Court, and sat at the extremely busy North York court.

Judge Connolly was survived by his former spouse Sherry and two daughters, Megan and Hillary.

Megan is a lawyer with Hull & Hull LLP. We extend to her and her family our best wishes for comfort and support during this very difficult time.

Thank you for reading.

Paul Trudelle

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Today’s blog is the last in my series addressing preparation for trial in a contested passing. The items discussed this week were certainly not meant to be, nor were they, exhaustive. Preparation necessary for a trial with narrow issues, few documents, few evidentiary concerns and an uncomplicated Estate will obviously be different than a case with numerous issues, voluminous documents, evidentiary issues and a complicated administration. The critical aspect of trial preparation is that it begins at the beginning of a case; not literally, but certainly in the sense of being mindful at pre-trial stages of the evidentiary considerations and how the evidence is to be marshalled and presented.

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Today’s blog, which is part of my series this week addressing preparation for trial in a contested passing, deals with several issues regarding evidence at trial.

Rule 52.04 of the Rules of Civil Procedure deals with the marking and numbering of exhibits at trial. Where appropriate and practical, a joint book of documents simplifies the use of documents and the marking of exhibits during the trial. With a joint book of documents, the Judge, the Registrar, each counsel and the witnesses only need to refer to one set of documents, rather than to multiple sets of documents. Depending on issues of admissibility, exhibits can be dealt with by marking each volume as an exhibit or each specific document, within a volume, as it is dealt with.

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Today’s blog is a continuation of my blogs this week addressing preparation for trial in a contested passing.

It is important in preparing for trial to prepare summaries of the transcripts of the examinations conducted to assist counsel with locating evidence in the transcripts during trial, including admissions and/or inconsistent statements made by a witness at trial. Having said that counsel should personally review the transcripts as part of trial preparation. By reviewing the transcripts, counsel can address issues involving: (i) the completeness and answers to undertakings/refusals, (ii) admissions made by the respective parties, (iii) incomplete answers provided by the respective parties to questions on the examinations, and (iv) whether additional discovery is needed before trial.

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In yesterday’s blog I noted that my blogs this week would, at least in part, address preparation for trial in a contested passing. Today’s blog comments on certain aspects of trial preparation (the parties, setting the matter down for trial and documents/productions).

The issue of whether all of the parties who ought to be involved in the passing are involved, and, if so, whether any of the parties who do not have representation need representation, must be considered. In considering who the appropriate parties are, or should be, the following questions might be asked: Are there self-represented parties? Have they been notified of all matters related to the proceeding? Has any party filed a Notice of No Objection to the accounts? Has anyone filed a Statement of Submission of Rights (if so, have they been served by the plaintiff with written notice of the time and place of the trial)? Is a minor involved (Rule 7.03(2), The Office of the Children’s Lawyer)? Is there an adult party who is disabled (Rule 7, The Office of the Public Guardian and Trustee)? Is a representation Order necessary (Rule 10).

Regarding the scheduling of the trial, an order of the Court for directions, or otherwise, at any pre-trial stage, or at the pre-trial conference might address same. It may be that the date of the trial, fixed in its length, is to be fixed by the Registrar on a date mutually convenient to the parties. If, on the other hand, the proceeding is to be set down for trial, Rule 48.01 of the Rules of Civil Procedure allows for the proceeding to be set down for trial after the close of pleadings and when a party is ready for trial. In any case, inquiries should be made with the Court office where the trial is to take place to determine what, if any, forms need to be filed with the Court to confirm that the trial is to proceed.

Regarding the preparation of documents/productions for trial, it is critical that the documents in respect of the proceeding be organized prior to trial. If the documents necessary for the trial are not in counsel’s possession when preparing for trial, for whatever reason, they should be obtained prior to trial. Such documents include, but are not limited to, all pleadings, the estate accounts, certificate of appointment, prior Judgments for passing of accounts, all Orders regarding the passing of accounts, all Notices of Objections (and withdrawals), Statements of Submission of Rights, Consents/Releases of any party, Affidavits of Service and the documents exchanged between the parties as a result of the Rules of Civil Procedure, any agreement of the parties and/or Court Order. 

Also ensure that all issues of privilege regarding the documents are dealt with prior to trial.

Lastly, ensure that you have the originals of your client’s documents unless they are not available. If originals are not available, know why they are not available.  

Thanks for reading.

Craig

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Listen to Episode 89 - Payment of Taxes on Death

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the necessity of planning for the payment of taxes on death.

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While contentious passings of accounts are regularly resolved at a pre-trial stage such as mediation, and without the necessity for a hearing, in certain circumstances a contested passing of accounts may only be resolved by way of a trial. In many cases, a successful result at trial is the direct result of the trial preparation.

It is perhaps trite to say, but trial preparation does not begin between the pre-trial conference and the commencement of trial; rather, it begins with the formulation of a strategy for the case, the identification of the issues in dispute, the determination of the evidence required to prove the case and the marshalling of that evidence. As such, while the ultimate strategy for a trial cannot be finalized until the pre-trial stages of the passing have been completed, and counsel have the benefit of a thorough review of the case (before the pre-trial conference), parties ought to be mindful of the matters to be dealt with at trial throughout the litigation and how such matters can be dealt with or addressed during the pre-trial stages, including through documentary disclosure, examinations and by way of orders of the Court (such as an Order Giving Directions or otherwise).

Having said that, my blogs this week will include a series that considers preparation for a trial of a contested passing.

Have a great day.

Craig

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Yesterday, the Ontario Bar Association held a very interesting seminar on "Passing of Accounts: Getting Cost Effective Results". 

Craig Vander Zee of this office gave a presentation on trials in a contested passing.  I was particularly interested in the comments he made in his paper about the use of expert evidence on a contested passing.  The court has the discretion to determine whether expert evidence should be introduced and will consider the necessity of such evidence, particularly in terms of the witness’s credentials or experience.

Expert evidence can be extremely helpful when the issues in dispute relate to such issues as trustee investments or the value of estate assets.  For example, when a beneficiary is displeased with the return on an investment a trustee has made, expert evidence can be helpful in persuading a court that the investment was a prudent one (or was an unwise one, as the case may be) or, if there is a dispute over the amount for which an asset was sold, an expert opinion on value can be helpful in determining what, if any, damages resulted from the sale. 

It is important to remember that when counsel wishes to rely on an expert opinion, the opinion and the information forming the basis of the opinion might have to be disclosed to opposing counsel.  However, counsel generally will not be required to disclose the opinion if it was prepared in contemplation of litigation. 

Have a great weekend!

Megan F. Connolly

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In cases where a deceased has failed to make adequate provision for the support of a dependant, the dependant has the option of bringing a dependant support claim under Part V of the Succession Law Reform Act.  The court then has the discretion to make such an order as it deems fit to provide for the proper support of the dependant. 

However, as anyone who has been involved in litigation knows, it can take a long time resolve.  For someone who was dependant on someone and is not receiving support after his or her death, having to wait until the litigation has been resolved before receiving any more support can create a significant financial hardship. 

Part 64 of the SLRA provides the court with the discretion to make an order for interim support in situations where the applicant is in need of and is entitled to support but where there are matters with respect to the claim for support that the court has not yet determined.  When determining whether to award interim support, the court will generally give a broad interpretation to the phrase “entitled to support” so as to avoid denying interim relief where a dependant needs it but it is too early in the proceeding to have determined the issues that have been raised on their merits. 

Of course, there is nothing to prevent an estate trustee from making interim payments to dependants who are also beneficiaries of an estate.  Getting the estate trustee to voluntarily make the payments will be less costly than having to obtain an order compelling them to do so.

Have a Great Day!

Megan F. Connolly

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In Szabo Estate v. Adelson, the court held that a solicitor’s lien extended to an original will being held by that solicitor.  The estate trustee sought to set aside that decision, arguing that the court should exercise its discretion to permit her to withdraw admissions made by her counsel during oral submissions. 

During the application, her lawyer conceded that the estate solicitor was entitled to place a lien on the file – however, he argued that the lien could not extend to the original will. 

The estate trustee wanted to withdraw that admission on the basis that there was no evidence to support a finding that she had discharged the estate solicitor.  She asked to submit further evidence relating to the termination of his retainer. 

While the court acknowledged that there was no written evidence in front of it during the original application that spoke to the circumstances surrounding the end of the estate solicitor’s retainer, the court also pointed out that counsel for the estate trustee had conceded on two instances during oral submissions that, with the exception of the original will, the estate solicitor was entitled to put a lien on the file. 

In denying the estate trustee’s motion, the court observed that judges are often required to rely on the oral submissions made by counsel in determining the matters before them.  As such, when counsel does make an admission, it is reasonable for the court to assume that counsel and his or her client do so understanding that the consequence that will flow from the admission and the inferences that the court might make. 

Thanks for reading!

Megan F. Connolly

 

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The New York Times reports that the son of the now-deceased New York socialite Brooke Astor has been criminally charged with his administration of her finances as well as the “handling” of her Will.  In addition, the solicitor who was involved in the signing of the third codicil to her Will is also facing charges. 

You might remember that David Smith wrote a blog about the guardianship dispute that had arisen between Mrs. Astor's son and his own son over the management of her assets.  Specifically, it was alleged that Mrs. Astor's son had been taking financial advantage of her and had not been properly attending to her physical care.  Although the son had denied the allegations, he agreed to be replaced as her guardian of property and personal care. 

Around the same time, concerns arose about the third codicil Mrs. Astor had made to her Will.  Specifically, that codicil benefitted charitable organizations in which the son was involved.  The Manhattan District Attorney convened a grand jury and began investigating, amongst other things, allegations of fraud respecting the codicil. 

At this point, the exact charges facing the son have not been revealed, although the general nature of them seems obvious considering the investigation that has been ongoing.  The New York Times notes that the prosecutors had been investigating whether Mrs. Astor had been subject to undue influence relating to millions of dollars of transactions that had benefitted the son.  In addition, the article notes that a handwriting expert had concluded that signature on the codicil in question could not possibly be that of Mrs. Astor. 

Given Mrs. Astor’s prominence in New York society as well as the salacious nature of the dispute, I’m sure we will be hearing a lot more about this in the future.