Estate practitioners should take note that many of the forms prescribed under Rule 74 have been revised, albeit primarily minor revisions have been made. The following forms have been revised:

• Form 74.4 - Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant);
• Form 74.4.1 - Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant) Limited to Assets Referred to in the Will;
• Form 74.5 - Application for Certificate of Appointment of Estate Trustee with a Will (Corporate Applicant);
• Form 74.5.1 - Application for Certificate of Appointment of Estate Trustee with a Will (Corporate Applicant) Limited to Assets Referred to in the Will;
• Form 74.7 - Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will;
• Form 74.14 - Application for Certificate of Appointment of Estate Trustee without a Will (Individual Applicant);
• Form 74.15 - Application for Certificate of Appointment of Estate Trustee without a Will (Corporate Applicant);
• Form 74.20.1 - Application for Certificate of Appointment of a Foreign Estate Trustee’s Nominee as Estate Trustee without a Will; and
• Form 74.30 - Application for Certificate of Appointment of Estate Trustee During Litigation.

Forms relating to passing of accounts applications have also been amended to correspond with amendments effecting applications to pass accounts, unopposed judgments on passing of account applications, and requests for increased costs.

The most significant changes to the Table of Forms made by O. Reg. 55/12 are the introduction of the following new forms:

• Form 74.13.2 - Order for Certificate of Appointment of (Succeeding) Estate Trustee with a Will Limited to the Assets Referred to in the Will;
• Form 74.21.1 - Application for Certificate of Appointment as Succeeding Estate Trustee with a Will Limited to the Assets Referred to in the Will;
• Form 74.22.1 - Consent to Applicant’s Appointment as Succeeding Estate Trustee with a Will Limited to the Assets Referred to in the Will; and
• Form 74.23.1 - Certificate of Appointment of Succeeding Estate Trustee with a Will Limited to the Assets Referred to in the Will.

The above-noted new forms were introduced as previously there were no forms available to address the appointment of a succeeding estate trustee who had a grant of probate limited to the assets referred to in the will, as in situations of multiple wills.

The revised and new forms have recently become available on the Ontario Court Services website. The revised and new forms come into effect, as do the other changes introduced by O. Reg. 55/12, on July 1, 2012.

Thanks for reading,
Saman Jaffery

In Ontario partial intestacy is governed by Part II of the Succession Law Reform Act ("SLRA"). In determining what to do with the portion of the Deceased's estate which was not covered by their will, the first step is to identify whether the Deceased was married at the time of their death (unfortunately for the purpose of this section common-law spouses are not entitled). When a married person dies intestate the first $200,000 of their estate goes to their spouse as a "preferential share". If there are any funds remaining in the estate after the payment of the preferential share, these funds are then distributed according to a set statutory scheme.
 

Presumably, when a married person leaves a will, they will leave part of their estate to their spouse. As the surviving spouse is likely already receiving a portion of the Deceased's estate under the will, it seems unfair that the spouse would be entitled to an additional first $200,000 as a preferential share of the Deceased's property which was not covered by the will. In order to get around this, section 45(3) of the SLRA provides that you need to take into account any property that the spouse receives under the will and subtract this from the preferential share. For example, if a person received $150,000 under the will, they would receive a preferential share of the first $50,000 of the Deceased's property that was not covered by the will. If a spouse receives more than $200,000 under the will, then in the case of the property not covered by the will there would be no preferential share.
 

If there is any property remaining after the payment of the preferential share, this property is distributed according to a set statutory scheme. In the case of a person dying with a spouse and no issue all remaining property is distributed to the spouse. If a person died with a spouse and issue, if there is only one issue then 1/2 of the remaining property goes to the spouse and 1/2 to the issue. If there are 2 or more issue, then 1/3 of the remaining property goes to the spouse, with the remaining 2/3 distributed to the issue.
 

In the case of a person dying partially intestate who is not married, the property would be distributed to their issue. If there are no issue it would go to their parents, siblings, nephews and nieces, or next-of-kin with reference to section 47 subsections (3) to (6) of the SLRA. In the event that no next of kin can be found, then pursuant to section 47(7) the property would escheat to the Crown.
 

Ian Hull - Click here for more information on Ian Hull. 

The Court considered Re Jeffery Estate, [1990] O.J. No. 1852 (Surr Ct.) and the oft-quoted five factors which are determinative in assessing compensation:

(a) the size of the trust;

(b) the care and responsibility involved;

(c) the time occupied in performing the duties;

(d) the skill and ability shown; and,

(e) the success resulting from the administration

The Court went on to note that "..the audit judge should first test the compensation claims using the percentages approach and then...cross-check or confirm the mathematical result against the five-factors approach....Hence, it is necessary to have the Accounts of the estate and the compensation sought by the Estate Trustee before the court in order to determine the amount of compensation sought by the Estate Trustee.  Therefore the motion to deny the Estate Trustee any compensation is dismissed but strictly without prejudice to the right of the applicants to argue that he is not entitled to compensation for the reasons urged upon this court, in the event he should seek compensation."

Notwithstanding that the relief was not granted, the Court was sympathetic to the plight of the applicants (they were young, in need, and there had been excessive delay) and ordered costs against the estate trustee.

David Morgan Smith - Click here for more information on David Smith. 

The third of these rules is often referred to as the "the course of dealing rule."   This is an equitable concept: the course of dealing rule operates so as to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties. 

In Hansen Estate v Hansen 2012 ONCA 112, the Ontario Court of Appeal considered whether a course of dealing between spouses in the midst of a legal separation equitably severed the joint tenancy in place at the time of Mr. Hansen's death.  In its analysis of the applicability of the course of dealing rule, the Court applied a quote from Professor Ziff: “the best way to regard matters is to say that equity will intervene to estop the parties, because of their conduct, from attempting to assert a right of survivorship.” The key factor is the expression of intention by the co-owners as evidenced by their conduct.  The Court goes on to say "the mutuality for the purposes of Rule 3 is to be inferred from the course of dealing between the parties and does not require evidence of an agreement."

The Court of Appeal found that the facts of the case established a course of dealing that severed the joint tenancy.  It is worth noting that the Court enphasised that each case in which this analysis is applied must be considered in the context of its specific fact matrix.

David Morgan Smith - Click here for more information on David Smith. 

 “Mary explained to her father in her usual forthright manner how very unfair she regarded his 2001 Will, and told him that she regarded the only fair disposition of his remaining property as being one under which she and her sister should be the beneficiaries, so as to take account of the substantial gifts of farmland which her father had already made to her brothers, and thereby bring about some semblance of equal treatment. I infer also that, in response, her father gave in to her request that he change his will accordingly.”

Two days later, the daughter drove the testator to a lawyer's office to make a new will.  

The Judge considered evidence from two expert psychiatrists, family members, neighbours, and the drafting lawyer. The psychiatrists agreed that the testator was suffering from cognitive impairment, possibly a precursor to dementia. 

Witnesses who saw the testator in the weeks following his wife’s death described him as "devastated" and "having taken a turn for the worse, mentally and emotionally." 

The Judge found that capacity is not determined solely by whether the deceased had the mental capacity to understand what he was doing: “The evidence of the experts in the present case shows… that affective disorder such as depression, including that caused by bereavement, is more likely to affect powers of decision-making than comprehension. A person in that condition may have the capacity to understand what his property is, and even who his relatives and dependants are, without aving the mental energy to make any decisions of his own about whom to benefit.”

The Court accepted expert evidence that bereavement can impede concentration, attention, and the ability to  retain information. Depression caused by bereavement could exhibit symptoms similar to dementia.

David Morgan Smith - Click here for more information on David Smith. 

According to section 48(1) of the CLRA, the parents of a child are equally entitled to be appointed as guardians of property of the child.  It thus follows that upon the passing of one parent, the default position under the CLRA is for the surviving parent to have guardianship.  Furthermore, under section 47(1) of the CLRA, the court can appoint a guardian of property upon an application made by, "…a child's parent or by any other person, on notice to the Children's Lawyer".  By including 'any other person' into the section opens the gates for non-parents to apply for guardianship.  In furtherance to a surviving parent or 'any other person' as mentioned above, a guardian of property can also be appointed by a testator under their will as per section 61(2) of the CLRA.
 

After considering who is eligible to become a guardian, it is important to consider the factors the court considers in the appointment process.  Section 49 of the CLRA lists the criteria considered by the court in deciding the appointment of a guardian of the property of the child.  These include: the ability of the applicant to manage the property of the child; the merits of the plan proposed by the applicant for the care and management of the property of the child; and the views and preferences of the child, where such views and preferences can reasonably be ascertained.  As well, the courts will consider the best interests of the child as noted in section 19(a).  It is important to remember that since the application is for a guardianship of property, the CLRA only requires submitting a management plan for property.
 

Ian Hull - Click here for more information on Ian Hull. 

• Seau took his own life by shooting himself in the chest. Fifteen months ago, former NFL safety Dave Duerson died of a self-inflicted gunshot wound to the chest, having left a suicide note asking for his brain to be donated for research. The Boston University School of Medicine Center for the Study of Traumatic Encephalopathy determined that Duerson’s brain indeed showed signs of CTE, the progressive, degenerative disease associated with repetitive closed head injuries.

• Up until April 19, 2012, Former Atlanta Falcons safety Ray Easterling was the lead plaintiff in a class action lawsuit against the NFL over concussion-related injuries. Since his death last month, by suicide, his widow has vowed to continue to fight the lawsuit her husband started after 20 years of suffering from symptoms of repetitive head trauma including memory loss, mood changes and depression.

• According to a 2011 study conducted by the Matthew A. Gfeller Sport-Related Traumatic Brain Injury Research Center at the University of North Carolina, the average life expectancy of a retired NFL player is 55 years. Some insurance providers have indicated that this is actually an overestimation, and that in fact the average age is somewhere closer to 51 years. For comparison purposes, the average male life expectancy in the United States is 78.2 years. [Note: If you played for the San Diego Chargers in 1994’s Super Bowl XXIX, then the odds against you are significantly grimmer. Eight of those teammates are dead, all before reaching the age of 45; a statistical anomaly since the 8 deaths lacked common cause.]

• The same UNC study  suggested that retired NFL players suffer from dementia at a 37% higher rate than average.

• A 2006 report in the St. Petersburg Times found that the more games and practices an NFL player survives, the quicker he dies. In his first 14 pro seasons, Seau missed only 9 games.

If Seau’s parents decide not to donate his brain for research, we may never know with certainty whether he suffered from Chronic Traumatic Encephalopathy. One thing is for sure, there’s something about playing in the NFL that doesn’t bode well for one’s life trajectory. Are repeated head hits causing organic damage to the brain, after which depression is the next domino to fall? Or perhaps, as in Easterling's case, organic brain damage brings on intolerable shifts in personality and cognitive functioning, but in an unkind twist, leaves one with just enough insight to see what lies ahead. Roger Goodell has made great strides since becoming NFL commissioner in 2006, introducing preseason baseline concussion testing, for example, not to mention the unprecedented smackdown of the Saints players implicated in the bounty scandal earlier this month.  His work is far from finished.

Jennifer Hartman, guest blogger

Through the doctrine of cy-pres not all hope is lost for the Children's Hospital. The cy-pres doctrine can be roughly thought of as the "near to" doctrine. It allows the court to apply funds which were intended for one charitable purpose (but for which distribution has now become impossible or impracticable) to instead apply those funds to another charity which has a "near to" charitable purpose. In our own example, through the doctrine of cy-pres, the "Children's Hospital on Lake Street" can receive the $100,000 that was intended for the "Children's Hospital on Main Street".
In order to apply the cy-pres doctrine, the court must first find that the charitable purpose has become impossible or impracticable. Examples of a charitable purpose being found impossible or impracticable can include a charity changing its name, the incorrect name being included within the actual trust document itself, or even when although the charity to which you left the money still exists, the task you left it for has now become impracticable (i.e. leaving money to the church to build a new steeple, but by the time you die the steeple has already been built).
 

Subsequent to the finding of impossibility or impracticability, you must next look to when the impossibility or impracticability with respect to the property being transferred occurred. If the failure occurred before the trust has taken effect (i.e. before the person dies in the case of a will), the court must also find that there was a "general charitable intention" on the part of the testator before the cy-pres order can be made. If, however, the failure occurs after the trust has taken effect, there is no need for the court to also find a general charitable intention on the part of the testator, and the cy-pres order is automatic.
 

In looking for whether there was a "general charitable intention" on the part of the testator, the court will look to the general circumstances surrounding the execution of the gift, and whether it was the intention of the testator to benefit only the specific cause to which they referred, or the more general heading or purpose to which the money was left to. If it was the testator's intention to simply benefit a specific cause then the cy-pres doctrine cannot be applied and the gift must fail. If, however, the testator intended to merely benefit the charitable purpose under which the gift fell, then through cy-pres the gift can be saved. Take for example the scenario used before of a person who left money to the church so that they may build a new steeple, but by the time the testator actually dies the church is no longer in need of such funds. If the court concludes that it was the intention of the testator to only give money to the church so that they may build a new steeple (and not simply to the church generally) the gift will fail. If, however, the court concludes that it was testator's intention to benefit the church in general then through the doctrine of cy-pres the gift can be saved, and the money can go to the church.
 

Ian Hull - Click here for more information on Ian Hull. 

The FLA clearly attempts to limit the Ontario Court of Justice's jurisdiction to make orders under s 34(2) unless one of the two exceptions are met in section 34(2).  It is worthwhile to explore how the court has interpreted these two exceptions.
 

The case of Baugh v. Samuels, 2001 CanLII 32833 (ON CJ), applies the ordinary dictionary definition to necessities.  At paragraph 48, Justice Heather L. Katarynych defines necessities as "…including not just things without which life cannot be maintained but things without which life is unduly harsh.  See the Concise Oxford Dictionary (7th edition, 1982)".  Justice Katarynych further goes on to explain that adequate medical coverage constitutes a necessity under the FLA.
 

With respect to when the section 34(2) exceptions are to arise, two conflicting judgments have been delivered.  In Martel v. Fortier, 1997 CanLII 11575 (ON CJ), Kukurin J. states at paragraph 37 of the judgment, "I can envision no situation in which the mere designation of a child as a life insurance beneficiary will immediately accomplish either of these objects.  It is clear that the intention of the subsection is addressed to the future".  Therefore, the section has been interpreted to focus on necessities and the dependent becoming a public charge arising in the future.  However, in Corbiel v. Corbiel, 1991 CanLII 4017 (ON CJ), the court seemed to follow differently, suggesting at paragraph 5 that, "…the words of the legislature cannot be interpreted to provide a form of security for necessities which, speculatively, may be required a lengthy time from now.  Although no authorities were cited to me, cases where such orders have been made involve needs and requirements of a much more imminent and emergent nature".  This seems to be contrary to the decision in Martel, as here, the Ontario Court of Justice is suggesting that necessities be imminent, and do not have to necessarily address future concerns.
 

As demonstrated in Corbeil and Martel, although the law is not entirely clear as to when the Ontario Court of Justice can flex their authority under s 34(2), the law is clear in allowing for beneficiary designations under life insurance and pensions to be used as a way to secure child/spousal support.  This is made clear under section 34(1)(i) and (j).  In the case of Laczko v. Laczko, 1999 CanLII 14998 (ON SC), the courts have gone so far as to require a payor spouse, who did not already have a life insurance policy, to purchase an insurance policy in order to secure child support payments.  This goes beyond the requirement of merely designating an existing insurance policy.
 

Ian Hull - Click here for more information on Ian Hull. 

In Schwartz, Mr. and Mrs. Schwartz transferred title to their matrimonial home to Mrs. Schwartz alone in 2000. In 2006, title was transferred to Mr. Schwatz alone. In divorce proceedings, the court found that Mr. Schwartz was holding title in the matrimonial home in trust for Mrs. Schwartz. A creditor of Mr. Schwartz’s appealed

The Court of Appeal addressed the issue of resulting trusts. The Court cited Kerr v. Baranow, 2011 SCC 10 (CanLII) and its reasoning that a resulting trust may arise in the domestic context where there has been a gratuitous transfer of property. In such a case, the courts may find that a resulting trust exists, with the effect of returning the property to the person who gave it. “Thus, the beneficial interest ‘results’ (jumps back) to the true owner. When faced with such an issue, the court must consider evidence of the actual intention of the transferor. Although an intention to gift property trumps the presumption of resulting trust, the intention at the time of the transfer is a question of fact.

In conclusion, the Court of Appeal held that it was open to the motion judge to find that Ms. Schwartz did not intend to gift her interest in the property and therefore had an interest in the property, but remitted the matter to the motion judge to determine the extent of the interest. 

Thank you for reading.

Paul Trudelle - Click here for more information on Paul Trudelle. 

The first question that needs to be considered is when an applicant has to pay EAT?  According to Rule 74.13(1) of the Rules of Civil Procedure, EAT must be paid at the time of the application for a certificate of appointment of estate trustee is made.  Exceptions to this can be found in Rule 74.13(2) to (4), which for example, allow an applicant to file an affidavit as to the estimated value of the estate at the time of the application.  EAT is then paid on this estimate.  If the applicant relies on this exception though, an undertaking must be given by the applicant to file a sworn statement as to the actual value of the estate and to pay the difference within six months.
 

The second question that needs to be considered is what to include in valuing an estate for EAT purposes.  Generally speaking, EAT is calculated on the fair market value of all property owned at the time of death.  This is determined by referencing s 1 of the Estate Administrations Tax Act, 1998 (the "Act") with s 32 of the Estates Act, 1990.  Assets generally excluded include: insurance payable to a designated beneficiary, real estate held outside of Ontario and property passing on survivorship.  Further, s 1 excludes the value of any encumbrance on real property. 
 

The third question that needs to be considered is how an applicant calculates EAT?  In order to answer this, reference must be made to the Act.  According to s 2 of the Act, if the value of the estate does not exceed $1,000.00, no EAT is paid.  The Act then offers how to calculate EAT for any certificate sought after June 7, 1992, in s 6.  The method offered is not the simplest to understand and thought instead I would pass on a simple and straightforward method that was taught to me recently by one of my colleagues.  Here we go: an applicant is required to pay $250.00 on the first $50,000.00 of the estate and 1.5% is paid on the balance of the Estate.  For example, if an estate is valued at $150,000.00, one would pay $250.00 (being the first $50,000.00 of the estate) plus $1,500.00 (being 1.5% of the remaining $100,000.00 of the estate), totalling $1,750.00 of EAT.
 

Ian Hull - Click here for more information on Ian Hull. 

Rule 7.08(1) of the Rules of Civil Procedure provides that no settlement of a claim made by or against a person under a disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge. The Rules of Civil Procedure defines a person under a disability as a minor, a mentally incapable person within the meaning of section 6 or 45 of the Substitute Decisions Act, or an absentee within the meaning of the Absentee Act. Put simply, before any settlement is binding on any person falling under these categories, the settlement must be approved by a judge.
 

In determining whether or not to approve a settlement on behalf of a person under a disability, the court provides in Giusti (Litigation Guardian of) v. Scarborough Hospital that it is the court's duty in determining whether to approve the settlement to protect the party under a disability and to ensure that the settlement is in the best interest of that party.
 

On a practical note, whenever a settlement involves the interests of a person under a disability you should almost always pre-emptively serve the Office of the Children's Lawyer or the Public Guardian and Trustee (depending on the facts of your case) with a copy of the motion materials when seeking approval of the proposed settlement. Although rule 7.08(5) provides that it is at the judge's discretion as to whether they would like to direct the materials to either government body, on the practical side, it is almost always wisest to pre-emptively serve them with the materials in order to ensure a smooth approval process. A judge will always be more willing to grant approval of the settlement with the knowledge that the Office of the Children's Lawyer or the Public Guardian and Trustee has approved of the settlement, and if you do not seek the approval of either body the court will almost certainly ask why you have not.
 

By requiring court approval of any settlement affecting the rights of a party under a disability the law ensures that those under a disability are not taken advantage of. Although many may see it as an unnecessary extra step in the litigation process, the process is designed to safeguard the rights of those who are perhaps the most vulnerable amongst us. Without the approval of a judge, no settlement is binding on a person under a disability.
 

Ian Hull - Click here for more information on Ian Hull. 

In Re Wright Estate, the Court summarized the doctrine of mutual wills and the obligations flowing from them, citing paragraphs 57-58 of Justice Cullity’s decision in Edell v. Sitzer 2001 CanLII 27989 (Ont. Sup. Ct. J.):

[57] The doctrine of mutual wills has traditionally been applied in cases where individuals have made separate wills pursuant to an agreement with respect to their terms.  Most commonly, they have agreed that each will obtain a benefit under the other’s will and that other specified individuals will receive the property of each of them on the death of the survivor … Where the requirements for the application of the doctrine are satisfied, the survivor will not be permitted to defeat the agreement by revoking his or her will after the death of the other.  This result is achieved by the imposition of a constructive trust on the survivor’s estate for the benefit of those who were intended to benefit under the agreement.

[58] The most fundamental prerequisite for an application of the doctrine is that there be an agreement between the individuals who made the wills.  It has been repeatedly insisted in the cases that:  (a) the agreement must satisfy the requirements for a binding contract and not be “just some loose understanding or sense of moral obligation”... [b] It must be proven by clear and satisfactory evidence; and (c) it must include an agreement not to revoke the wills.

In Re Wright Estate, the executrix sought to enforce an alleged agreement (the "Agreement") made by her father (“Donald”) and his second wife (“Vickie”) when they signed mutual wills in 2001. (In Donald’s case, a codicil – rather than a will – was made.) The Agreement provided that Donald would make a codicil to his last will to give Vickie a life interest in all of his real property and designate her as the beneficiary of his RRIFs. In exchange, Vickie agreed to make a will which provided for an irrevocable gift of the remainder of her estate to David’s estate (to benefit his adult children, who were named as his residuary beneficiaries) after a gift of $30,000 was paid to each of her two adult children. After Donald’s death in 2004, Vickie made two new wills – in each she provided that the residue of her estate would go to her own children rather than Donald’s estate, violating the terms of the Agreement with Donald.   Following Vickie’s death, the executrix of Donald’s estate argued that the executors of Vickie’s estate acted in breach of trust by failing to honour the Agreement. For their part, the executors of Vickie’s estate claimed that there was no such Agreement, and denied that Vickie had made a will in 2001 (as the original copy of Vickie’s 2001 will could not be located and no signed copy was available).

In deciding whether Donald and Vickie had made the Agreement as alleged and what effect such an Agreement had, the Court relied heavily on the affidavit of the solicitor who had drafted Donald's and Vickie’s respective codicil and will in 2001, stating that his evidence was “critical to the outcome.” The solicitor had kept detailed notes of their instructions and his advice to them, and his affidavit confirmed the terms of the Agreement and confirmed that Vickie signed her 2001 will in his office. The Court held that the evidence was “clear and convincing” and established that Donald and Vickie made an Agreement. The Court further held that in making the Agreement, “Donald and Vickie went beyond trusting each would do the “right thing” or that each would provide fairly for the other’s children” and that the Agreement was “a binding agreement, the terms of which were certain.” Accordingly, the Court held that the executors of Vickie’s estate were bound by the Agreement and ordered them to account for any failure to comply with the Agreement. 

As the evidence of the drafting solicitor carried the day in Re Wright Estate, this case serves as a reminder of the importance of detailed solicitor’s notes where mutual wills are prepared.

Thanks for reading,
Saman M. Jaffery – Click here for more information about Saman M. Jaffery 

Canadian-born Rypien, now 49, quarterbacked for the Redskins from 1986 until 1993. The suit alleges that Rypien suffered multiple concussions and head injuries during his time with the Redskins, and as a result, he now suffers from “various neurological conditions and symptoms”. The plaintiffs are seeking “medical monitoring, as well as compensation and financial recovery” for the long-term and chronic “injuries, financial losses, expenses and intangible losses”.

This class-action lawsuit is not an aberration; NFLConcussionLitigation.com lists 51 suits against the NFL, representing more than 1,000 former players. Just six weeks ago, the family of former Chicago Bears star Dave Duerson filed a wrongful death suit against the NFL claiming the league did not do enough to prevent or treat the concussions that severely damaged Duerson’s brain. In February 2011, Duerson died of a self-inflicted gunshot wound to the chest, having left a suicide note pleading to have his brain donated to researchers at the Boston University School of Medicine Center for the Study of Traumatic Encephalopathy. The attorney representing Duerson’s family said the NFL should have been a leader in educating current and former players about head injuries.

Rypien’s lawsuit comes on the heels of the NFL’s investigation of allegations that the New Orleans Saints and other teams had ‘bounty programs’ which offered cash bonuses to players for injuring specific opponents. In response, NFL Commissioner Roger Goodell suspended Saints coach Sean Payton for one year, without pay.  General Manager Mickey Loomis was suspended for eight games, assistant coach Joe Vitt was suspended for six games and former defensive coach Gregg Williams (who left the Saints to join the St. Louis Rams) has been suspended indefinitely.  On Friday, Loomis, Vitt and Payton announced that they are appealing their suspensions.  The NFL has indicated that as many as 27 players may have been involved in the bounty scandal, although at the time of publication, none have been sanctioned.

Jennifer Hartman, guest blogger 

If an estate is insolvent, one could easily imagine that you would have a hard time finding an executor to administer the estate. With no funds available for compensation, what incentive is there for a person to put in the time and effort administering an estate only to not be financially compensated for it? In order to correct this problem, section 44(2) of the Bankruptcy and Insolvency Act allows the executor to pay for "the proper funeral and testamentary expenses" of the deceased prior to administering the deceased's estate to their creditors. The reasonable compensation of the executor has been recognized to be included within the definition of "testamentary expenses", as has been the reasonable accounting fees associated with administering the estate (see Re: Ladner Estate).
 

With an executor in place, the proper procedure to administer an insolvent estate in is set out by section 50 of the Trustee Act. The Trustee Act provides that when there are not enough assets to satisfy all of the deceased's creditors, the executor is to distribute to the deceased's creditors "proportionately and without any preference or priority of debts of one rank or nature over those of another". Put simply, whatever percentage of the deceased's debt a creditor is responsible for is the percentage they will receive from deceased's assets (subject to exceptions delineated by statute). If you are responsible for 60% of the deceased's debt, you will receive 60% of the deceased's assets.
 

Not everyone dies with a wealth of assets to leave to those closest to them. Many people die owing more to their creditors than they have in assets, leaving an insolvent estate. Through the provisions contained in statutes such as the Bankruptcy and Insolvency Act and the Trustee Act, there is a set procedure to follow in what to is to be done in administering an insolvent estate. Although you cannot leave your debt to those closest to you, by leaving an insolvent estate someone will have to step into an administrative role and ensure that all creditors are paid following an insolvent person's death.

Ian Hull - Click here for more information on Ian Hull. 

The WSA consolidates Alberta’s Wills Act, Intestate Succession Act, Survivorship Act, and Dependants Relief Act (which are now repealed in full) and section 47 of the Trustee Act (which section is also now repealed).  The WSA is now the primary statute dealing with wills, intestacy, beneficiary designations, survivorship, dependant’s support, and other succession issues.  The WSA also includes consequential changes to Alberta’s Matrimonial Property Act, Administration of Estates Act, and Family Law Act.

Key changes made by the WSA include:

• Effective February 1, 2012, an existing will is no longer revoked upon the marriage of the testator.
• Unless a contrary intention is shown, if a marriage or adult interdependent partnership (i.e. common law relationship) ends before the death of a spouse, any gift in the will to the ex-spouse is revoked, provided the relationship ends after February 1, 2012.
• A spouse has the right to stay in the home of the deceased (if the home is held in the name of the deceased only) for a three month period.
• In an intestacy, where the deceased leaves a surviving spouse and children, all of the estate will go to the surviving spouse if the children were all of the relationship of the deceased and the surviving spouse.  However, if the children are not all of that relationship, the spouse will receive 50% of the estate or the amount of the preferential share of $150,000, whichever is greater, with the remainder going to the children. 
• Also, where the deceased and the surviving spouse were separated for more than two years, the surviving spouse does not receive a share of the estate in an intestacy. However, the surviving spouse may still have a claim under the Matrimonial Property Act or as a dependant.
• In an intestacy, if there is no surviving immediate family, the rules have also changed with respect to the ultimate distribution of the estate. See the Parentelic Distribution Chart prepared by Alberta Justice for a summary of the changes.
• There are new powers allowing the Court to admit for probate wills that do not comply with all formal requirements of execution.
• The admission of extrinsic evidence is now expressly permitted in interpreting a will.  In interpreting a will, the Court may now admit corroborated, outside evidence including evidence to help prove the testator’s intention.
• Adult children under 22 years old who are full-time students and minor grandchildren/great-grandchildren are now provided standing to commence a dependant’s relief claims.
• If two or more people die at or around the same time, their estates are administered as if each died before the other. Previously, the youngest was deemed to have survived.

One significant change proposed by the WPA respecting a surviving married spouse’s right to claim a division of matrimonial property (section 117) has not yet been proclaimed, pending further consideration on how best to transition this new law or if any amendments are necessary.  In its current form, section 117 provides that a surviving married spouse is entitled to make a claim against the estate under the Matrimonial Property Act for a division of the matrimonial property accumulated during the marriage.  Unlike the election option in Ontario, section 117 provides that such a claim may be in addition to any property or other benefit received by the surviving spouse under a will or on an intestacy of the deceased spouse.

For more information, please consult Justice Alberta’s Guide to the WPA.  

Thank for reading,
Saman M. Jaffery – Click here for more information about Saman M. Jaffery

The most well known example of disinheritance for public policy reasons is murder. If you murder a person who had previously left a testamentary devise to you in their will you are precluded from taking under their will. This policy just makes sense. You do not want to give an incentive or reward to a person for killing another individual, and by denying a murderer an interest in their victim's estate this is hopefully accomplished. Similarly, a person who kills another is precluded from benefiting in any life insurance policy held on the victim's life (see Re Benson Estate (1998), 29 E.T.R. (2nd) 104).
 

Historically, adultery was the earliest form of spousal misconduct that led to disinheritance. This dated back to 1285, when the Statute of Westminster II bared women from taking dower if she had abandoned her husband to live in an adulteress relationship with another. While adultery has faded away as a ground for disinheritance now in Canada, in the U.S. there are a few states that continue to employ disinheritance for adultery (some even permitting for discretion if the aggrieved spouse condoned the adulterous relationship). Interestingly, Indiana only bars disqualification if the adultery persists until the decedent spouse's death.
 

An interesting topic that may be considered in the future is whether a spouse who commits domestic abuse against another spouse should be precluded from inheriting under their spouse's estate. Many states in the U.S. have already enacted such provisions, however as of right now no provinces in Canada have considered similar policies. From a public policy standpoint it comes across as quite shocking that there is no statute barring perpetrators of domestic violence from inheriting from their victim's estate.
 

Bad behaviour towards another can get you in more trouble than simply with the law. Being written out of the will is not the only way that a person can be disinherited, as through their behaviour a person can be disinherited from a person's estate. .
 

Ian Hull - Click here for more information on Ian Hull. 

Under most circumstances this arrangement works fine. Clients with urgent matters will get their matters dealt with right away, while client's whose matters are not as urgent will get their matters dealt with within a reasonable amount of time (although perhaps not as quickly as they may like). But what happens when a task that was placed on the back burner is left there too long? What happens, for example, when a client who retained a lawyer to draft their will dies before the will is executed? Was the lawyer negligent in placing the will on the back burner for too long?
 

Whether a lawyer will be found to have been negligent in not preparing the client's will before they died will depend on the circumstances of the case. The first place to look in determining if a lawyer met their expected level of competence is the Law Society's Rules of Professional Conduct. Rule 2 sets out some of the basic parameters regarding the expectation of diligence and timely advice in the estate planning, and includes the provision that a lawyer will perform all functions "conscientiously, diligently, and in a timely and cost-effective manner."
 

Rosenberg Estate v. Black, [2001] O.T.C. 939 (ONSC), provides a list of factors that the court is to take into consideration when determining if a lawyer was negligent in not preparing the client's will before they died. These factors include:
 

i. The terms of the lawyer's retainer - whether a precise timetable was agreed upon;
ii. Whether there was any delay caused by the client;
iii. The importance of the will to the testator;
iv. The complexity of the job;
v. The circumstances indicating the risk of death or onset of incapacity in the testator; and
vi. Whether there has been a reasonable ordering of the lawyer's priorities. That is, whether the client has the right to expect that the job will be done within a reasonable ordering of the priorities in a lawyer's life and practice.
 

Not all lawyers who fail to prepare the client's will before they die will be found to be negligent. Each case will be fact specific, and look to the circumstances of the case with reference to the factors listed in Rosenberg Estate. Prioritizing work is simply a fact of life for most lawyers. In prioritizing their work however, a lawyer needs to ensure that they are not negligent to their client's needs.
 

Ian Hull - Click here for more information on Ian Hull.