The amendments also increase the costs allowable upon an unopposed passing of accounts.

The amendments, found in Ontario Regulation 55/12, come into effect on July 1, 2012.

With respect to timing, the amendments make the following changes:

• Notice of Application: Ontario respondent: 60 days notice (up from 45)
• Notice of Application: Outside Ontario respondent: 75 days notice (up from 60)
• Notice of Objection: 30 days before hearing (up from 20 days)
• Response from Children’s Lawyer or Public Guardian: 30 days before hearing (up from 20 days)

The amendments also codify what is required where a request for increased costs is being made, and the time frame for making and opposing such a request.

The tariff for costs allowable on an uncontested passing allows for greater costs. The costs range from $2,500 for an estate having a value of less than $300,000, to $7,500 for an estate having a value of $3,000,000 or more (up from a range of $800 to $5,000).

Have a great weekend.

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

A holographic Tupac Shakur appeared recently to “perform” with Dr. Dre and Snoop Dogg at Coachella, a music festival in Los Angeles.

As readers may know, Tupac was murdered in Las Vegas in 1996. (I do not intend to weigh in on the East Coast - West Coast rivalry that apparently led to his death.)

Tupac’s virtual appearance has led to a number of discussions about the nature of “live” performances, and the appropriateness of bringing the dead back to stage.

The Forbes website posted an article that looked at the performance and the possibility of other deceased performers reappearing on stage.

The Forbes article notes that only the holder of the “right of publicity” can authorize the use of the deceased’s image. In Tupac’s case, the estate executor is Tupac’s mother. The article reports that she did not authorize the use of Tupac’s image, but was “thrilled with the outcome”. Apparently, Dr. Dre repaid the estate by making a contribution to the Tupac Amaru Shakur Foundation.

The article goes on to comment on the role of an estate trustee, and the importance of choosing the right person: someone who will ensure that your reputation and the well-being of your heirs is properly respected. “Putting the right person in charge can make all the difference between tainting your legacy, and having your wishes and goals followed the way you want.”

Thank you for reading.

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

Maybe Phillip II was on to something. Recently, a report has suggested that thinking about death can be a good thing. Awareness of mortality can improve physical health and help individuals reprioritize goals and values.

The report in Science Daily says that even non-conscious thinking about death, such as walking by a cemetery, can prompt positive changes and promote helping others.

One study referred to in the article showed that people were more likely to help a stranger who dropped a notebook while walking in a cemetery as opposed to helping if not in a cemetery.

Another study showed that people were more likely to make better health choices, such as applying sunscreen, smoking less, increasing physical activity or performing breast self-exams, when reminded of death.

These recent studies refute prior research that suggested that thinking about death lead to negative attitudes and harmful behaviour, such as prejudice, greed and violence.

Thanks for reading.

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

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. 

A memorandum, even if not properly executed, will be “incorporated by reference” and found to part of a valid will if:

a. the memorandum is referred to in a duly executed testamentary instrument;

b. the memorandum is in existence at the time of the execution of the testamentary instrument; and

c. the memorandum is “ascertainable” – that is, there is specific reference to a specific document. The reference to the document must make it identifiable: see Black Estate v. Black, 2006 CarswellOnt 9030, 32 E.T.R. (3d) 282 at para. 19.

Reference in the will to a document that is to be created in the future can be fatal to the application of incorporation by reference. However, reference to a memorandum that does not exist at the time the will was executed, but exists at a time when a codicil confirming the will is executed may result in a valid incorporation by reference: See Re Lady Truro (1866), L.R. 1 P.& D. 201, referred to in Hull, Probate Practice, 4^th ed, p. 83.

Thanks for reading,

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

By court order, the plaintiffs in a motor vehicle action (the accident happened in 1999) were to pay costs by noon on November 24, 2010. If the plaintiffs defaulted, the plaintiffs’ action was to be dismissed. 

Payment was rendered late in the day on November 24, 2010. 

Notwithstanding, the plaintiffs’ claim was dismissed.

The plaintiffs retained new counsel, and moved to extend the time limits set out in the earlier court order. The plaintiffs were successful.

The court noted that there was no prejudice to the defendants that could not be compensated for in costs. 

The court further noted that the fact that the plaintiffs may have a cause of action against their prior lawyer if the dismissal was upheld should not be a factor considered by the court in determining whether the dismissal should be set aside. The primary concern should be the rights of the litigants, and not the conduct of their counsel.

The court ordered that the plaintiffs were liable to the defendants for the costs of the motion to set the dismissal aside.

Thanks for reading.

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

Practical difficulties can arise in obtaining DNA tests in estate matters, where a DNA sample of the deceased may be thought to not be readily obtainable. 

In Proulx v. Kelly, 2010 ONSC 5817 (CanLII), which I blogged on yesterday, the problem of obtaining a sample from the putative father, since deceased, was not an issue as the court noted, without giving particulars, that a sample from the deceased existed. 

Similarly, in Nandwani v. Nandwani et al, 2011 MBQB 231 (CanLII), samples from the deceased were said to exist, without an explanation as to how or why.

In Turner v. Irwin, 2003 MBCA 146 (CanLII), there was a request for the release of tissue and blood samples of the deceased “that for some reason have been retained by a hospital.”

In Miller v. Staples Estate, 2006 NSCA 140 (CanLII), the brother of the deceased agreed to provide a DNA sample to assist in determining whether a claimant was a child of the deceased. Counsel agreed that DNA testing with such samples would be determinative of the issue of paternity.

Other options for obtaining DNA samples include obtaining hair samples and fingernail cuttings from a recently deceased person. It is also possible to obtain DNA samples from a toothbrush, comb, dentures, or cigarette butts.   However, the quality of the sample will vary depending on a number of factors, and the reliability of the test will reflect the quality of the sample. Still another option is to obtain bone and/or dental samples from an exhumed body. (See DNA Paternity Test website.)

In the later case, compliance with the Cemeteries Act will be required. 

Thank you for reading.

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

We have blogged on DNA testing before. 

In Proulx v. Kelly, 2010 ONSC 5817 (CanLII), the court considered whether it would grant a request to obtain a DNA test of the Respondent in order to determine whether she was, in fact, the biological child of the deceased.

In Proulx, the issue was whether the Respondent was the daughter of the deceased.  The sister of the deceased contested the claim made by the Respondent that she was the deceased’s daughter. 

The Respondent relied upon the “presumption of paternity” set out in the Children’s Law Reform Act.  Pursuant to s. 8 of this Act, a person is presumed to be the father of a child in a number of circumstances, including circumstances where:

a. the person is married to the mother of the child at the time of the birth;

b. the person marries the mother of the child after the birth of the child and acknowledges that he is the natural father;

c. the person has certified the child’s birth as the child’s father under the Vital Statistics Act;

amongst other circumstances.

The Respondent argued that the presumption of paternity was not rebutted by the Applicant, and thus a DNA test should not be ordered. The court disagreed with this conclusion. The court held that a paternity test could be ordered under s. 10 of the Children’s Law Reform Act, and that s. 10 stands alone from s. 8, which provides the presumption of paternity. As there was some evidence to bring paternity into question, a DNA test was ordered.

The court also appears to have relied upon the fact that a DNA test is highly reliable. The court stated that it would prefer an outcome based on testing to an outcome based on the contested and contradictory evidence of the parties and other family or community members.

Thanks for reading.

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

On Monday this week, the Ontario Court of Appeal dismissed the appeal, and upheld the decision of the lower court.  In a brief endorsement, the Court of Appeal stated “We have not been persuaded that the application judge erred in her interpretation of the Separation Agreement. Since the deceased never revoked his will, the gift in the will to the respondent stands.”

The Court of Appeal also dismissed a motion to admit fresh evidence. No particulars of this motion were given.

As I stated in my prior blog, separated spouses must consider their estate plan, including terms of their wills and beneficiary designations to ensure that their intentions are properly reflected.  In the case of Makarchuk, it is not clear whether the husband intended to benefit his separated spouse.  However, as the lower court noted, had he wished to not do so, there were a number of means available to him to effectively revoke the gift he had made to his spouse prior to their separation.

Have a great weekend.

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

Highlights include an art installation entitled “the ‘Boxed’ coffin exhibition”, which features a number of unusual coffins, including coffins in the shape of a dumpster, a lion, a Mercedes, a car, and a skateboard.

Less light-hearted events include a debate on assisted dying; a music concert featuring composers obsessed with death; an art installation that commemorates the 250,000 people that will be born or die in 12 hours around the world; a poetry workshop on writing poetry when dealing with the grief associated with the death of a loved one, and a pseudo-funeral procession borrowing from a New Orleans funeral parade.

Other events include a chalkboard where attendees can record an item from their “bucket-list” of the one thing that they want to do before they die, and a children’s play chronicling the last days of a pet guinea pig.

Together, the festival’s numerous events shed light on and led to healthy discussion of a topic many are reluctant to talk about. 

Thank you for reading.

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

Etta James had a particular significance to me. After buying my first CD player, Etta James’ CD was the first CD that I purchased. That CD got a lot of play.

Etta James lived a turbulent life. She was born to a mother whom Etta described as a scam artist, a substance abuser and a fleeting presence during her younger years. She did not know her father. During her lifetime, she would battle addictions.

However, as a musician, she soared. She was inducted into the Rock and Roll Hall of Fame, and won numerous Grammys, including a special lifetime achievement Grammy in 2003.

Near the end of her life, her health declined, and here family was involved in a dispute over her care. Her two sons had challenged decisions being made by Etta’s husband, who was the conservator of Etta’s $1m estate.  The dispute was reported as settled, with the husband staying on as conservator, and the amount available for her expenses and care being fixed at $350,000. The sons were also to receive a full financial accounting of Etta’s music catalogue.

Thank you for reading.

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

We previously blogged on this case in 2009 and 2010, as it wound its way through the court system. At issue was the validity of two Wills.  The more recent Will left the entire estate to the widow, which Will she was seeking to have declared valid. 

Mr. Gatti’s family contended, however, that an earlier Will was the valid last Will, which left the bulk of the estate to Mr. Gatti’s mother.  Importantly, the signed prior Will was never located. 

The Court found that the last Will was valid, and that Ms. Rodrigues did not manipulate Mr. Gatti into signing it.

The decision does not end the legal troubles for the estate and the family, since it is reported that there is a court date coming up in New Jersey to deal with a wrongful-death suit by Mr. Gatti’s former girlfriend Erika Rivera, the mother of his daughter, Sofia, and there is a trial pending in Florida involving a man suing Mr. Gatti for injuries he allegedly received from the late boxer.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

The Estate Trustee applied for directions on the interpretation of the Will. Did the real property and accounts pass to the brother, or where they to be divided equally amongst the brother and the five other named beneficiaries?

Important to the decision was the fact that the real property and accounts made up the bulk of the estate.

What did the court do? The court found that the estate was to be divided amongst the five named beneficiaries and the Estate Trustee. The court noted that extrinsic evidence could be used to interpret the Will if there was ambiguity, and held that the only extrinsic evidence of relevance was the fact that there were no significant assets other than the real property and the accounts. The testator, the court held, must be presumed to know what his estate consisted of, and that there would be no significant residue beyond the specified assets. 

In any event, the court held that extrinsic evidence was not required, as there was no ambiguity. The testator referred to “my estate”. “In the absence of any further language limiting their application, the plain and ordinary meaning of those words is that all individuals named in the will share equally in the entire estate.”

Costs of all parties were ordered to be paid from the estate. The modest estate had a value of approximately $275,000. Presumably, the costs of the parties absorbed a significant part of the estate: costs which could have been avoided by a properly drafted will. Perhaps a better title for this blog would be “The Perils of a Handwritten Will.”

Thank you for reading.

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

In a thought-provoking article in the December 2011 issue of The Lawyers Weekly, Adam Parachin, an associate professor at the Faculty of Law, University of Western Ontario, discusses the high onus to be met in undue influence cases, the application of a presumption of undue influence in certain cases, and the perils of strengthening the presumption of undue influence.

Specifically, Parachin states that the court’s increasing willingness to accept circumstantial evidence of undue influence possibly means that the need for a presumption is less obvious. Further, identifying “triggers” to the imposition of a presumption leads to a circular argument: “instances best meeting this requirement [to trigger the presumption] are those where the need for the presumption is the least apparent.”

Further, the application of the presumption may detract from the testamentary freedom of the testator. As noted by Parachin, the application of the presumption could disproportionately jeopardize wills that depart from the usual pattern of estate distribution, or wills that are not prepared in accordance with the usual protocols. In addition, testamentary freedom should extend not only to how one’s estate is to be distributed, but to who is to be included in the will making process. 

Finally, Parachin states that a strong presumption might facilitate questionable claims. The costs of defending these claims, and of rebutting the presumption, would bolster these questionable claims, and lead to compromises that might, in many cases, be contrary to the testator’s intention.

Let the debate begin.

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

In Hubley v. Hubley Estate, 2011 PECA 19 (CanLII), the husband died in a car accident that was a result of the husband’s negligence. The wife claimed that as a result of her husband’s death, she lost the benefit of her husband’s earnings, and his retirement pension benefits. She also claimed the loss his care, guidance and companionship.

Those claims were dismissed on motion, and the wife appealed to the Court of Appeal.

On appeal, the Court of Appeal agreed with the motions judge. 

The Court of Appeal framed the issue as being whether the husband owed the wife a prima facie duty of care to protect himself from injury and/or death. 

The Court of Appeal noted that the court will proceed with caution in allowing for recovery of economic loss when the plaintiff has not suffered physical harm or property damage. (The fact that the wife was injured in the car accident was not seen as being the physical harm necessary to support a duty of care: her claim for damages related to her husband’s death, and not her injuries.)

The Court of Appeal noted that finding a duty of care in the circumstances would have far-reaching policy consequences. There could be indeterminate liability. Finding a duty of care not to harm oneself would also lead to “complex and unsettled questions as to how people lead their lives. … There could be a whole range of situations giving rise to law suits ranging from one’s failure to wear a seatbelt to risking one’s own health by lifestyle choices.” Finding a duty of care not to harm oneself “would impact on one’s right to self-determination and freedom of choice.”

Thanks for reading.

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