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

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I regularly tutor students who are preparing to write the Estate and Trust section of the Solicitor’s exam for the Law Society. One of the more common questions that my students ask is for help in explaining two concepts: lapse and the “anti-lapse provision”.

The common definition of a lapsed gift, is a gift that has failed because it is incapable of taking effect.   Two common reasons for a gift to be incapable of taking effect is where the beneficiary predeceases the testator or the gift is disclaimed by the beneficiary.  

Pursuant to Section 23 of the Succession Law Reform Act, unless a contrary intention appears in the Deceased’s Will, if a gift is incapable of taking effect, the failed gift will fall into the residue of the testator's estate and distributed accordingly.

Section 31 of the Succession Law Reform Act is commonly referred to as the anti-lapse provision. The anti-lapse provision saves a failed gift if the beneficiary falls into the class of beneficiaries set-out under this provision and that beneficiary leaves a spouse or issue who survived the testator. If these conditions are met, the gift will not fall into the residue, however it will take effect as if it had been made directly to the spouse or issue of predeceased beneficiary.

Thank you for reading, and have a great day.

Rick Bickhram - Click here for more information on Rick Bickhram.

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In a recent court decision, the Honourable Justice Stinson considered a motion from competing family members for the appointment of an estate trustee during litigation.

In Buswa v. Canzoneri, the Deceased died without a Will on September 29, 2010. The Deceased did not have a spouse and was survived by seven siblings, and two children.

The concern in this case was that the Deceased did not leave anyone with legal authority or responsibility to arrange his funeral and dispose of his remains.

Two of the Deceased’s siblings, the Applicants, applied for a Certificate of Appointment of Estate Trustee Without a Will. The daughter of the Deceased, the Respondent, also applied for a Certificate of Appointment of Estate Trustee Without a Will.

In his decision, the Honourable Justice Stinson considered the legal interpretation of section 29 of the Estates Act, which reads as follows:

As the Deceased did not have a spouse, the court considered the definition of “next of kin.” In the Black’s Law Dictionary, “next of kin” is defined as “the person's nearest of kindred to the decedent, that is, those who are most nearly related by blood.”

Applying these concepts, the court held that the Respondent daughter was related to the Deceased by blood in the first degree, whereas the Applicants siblings were related to the Deceased in the second degree. Accordingly, the Respondent daughter was appointed as the Estate Trustee During Litigation.

Thank you for reading, and have a great day.

Rick Bickhram - Click here for more information on Rick Bickhram.

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Estates law often has distinct legal meanings for common terms. Take the term "personal representative". The term is defined in estates statutes, but also appears with and without definition in business corporations statutes and other statutes. 

Adams v. Ontario (1996) provides that when the phrase "personal representative" is used in connection with a deceased and the administration of the deceased’s estate, it can have only one meaning, which is the meaning set out in the definition contained in the Estates Administration Act, the Trustee Act, and in the Succession Law Reform Act:

1(1) “personal representative” means an executor, an administrator, or an administrator
with the will annexed.

The term is therefore very broad: it includes both the executor (who may never receive probate) and the recipient of a Certificate of Appointment of Estate Trustee with a Will.

The same case acknowledges that the term “personal representative” can have other meanings when it is not applied to a deceased or the administration of a deceased’s estate, such as in Ontario's Business Corporations Act.

Thanks for reading,

Christopher M.B. Graham - Click here for more information on Chris Graham.

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As I noted yesterday, Ontario’s Good Government Act 2009 has received royal assent. Over 300 pieces of legislation have been amended or repealed, including various statutes dealing with the regulation of charities in Ontario.  

Of particular note are the following two changes:

1.    The Charitable Gifts Act (the “CGA”) has been repealed. This Act has long been criticized for unnecessarily restricting the ability of charities from directly or indirectly owning more than a 10% interest in a business, particularly as the Income Tax Act already imposes various restrictions on registered charities conducting business activities. The repeal of the CGA may be a welcome change to Ontario charities wishing to acquire an interest in a business for investment purposes. 

2.    An amendment to the Charities Accounting Act (“CAA”) relates to the section dealing with interests in real or personal property held for a charitable purpose. Historically, the CAA restricted the ownership of real estate by an Ontario charity by requiring that land could only be held to the extent that it was used for the charitable purpose. A charity could not own excess land and lease it out. Any excess property was subject to vesting in the Public Guardian and Trustee. The amended section now simply provides that a charity that holds an interest in real or personal property for a charitable purpose shall use the property for the charitable purpose. This amendment will presumably allow charities to hold excess property, both real or personal, and invest such property in order to earn income. 

For a more fulsome discussion of the effect of the Good Government Act, 2009 on charities, see Miller Thomson’s informative newsletter.

Bianca La Neve

Bianca V. La Neve - Click here for more information on Bianca La Neve.

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On December 15, 2009, the Good Government Act, 2009 received royal assent. This statute amended or repealed over 300 pieces of legislation, ranging from the Accumulations Act to the Off-Road Vehicles Act. There are various amendments that should be of particular interest to those of us who practice estate, capacity and trust litigation.

The Crown Administration of Estates Act is amended by adding a new section 5.1, dealing with the enforceability of compensation agreements. A “compensation agreement” is defined to mean an agreement with an heir of an estate that provides for compensation, directly or indirectly, to one or more persons or entities on the location, recovery or distribution of any interest in the estate to which the heir may be entitled. In cases of estates administered by the Public Guardian and Trustee, there must be fair disclosure before a possible heir is asked to sign a compensation agreement. In addition, there is a cap on compensation of 10 per cent of the value of the possible heir’s interest in the estate. Click here for the complete text of the Act.

The Health Care Consent Act, 1996 is amended to increase the time allowed, from two days to four days, for the Consent and Capacity Board to issue written reasons for decisions. In addition, the Act is amended to allow the Board to direct Legal Aid Ontario (instead of the Public Guardian and Trustee or the Office of the Children’s Lawyer) to arrange for legal representation for a person who may be incapable with respect to a treatment, managing property, admission to a care facility or a personal assistance service. Click here for the complete text of this Act.

Bianca La Neve

Bianca V. La Neve - Click here for more information on Bianca La Neve.

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The concept of reviving a revoked will seems clear enough.  But what is the difference between a revival and a republication, and why does it matter? 

Revival means reactivating a revoked will.  Note that section 19(1) of Ontario's Succession Law Reform Act requires a revival to be in accordance with the provisions of Part I of the Act.  So an oral declaration that a revoked will is valid does not suffice.  A destroyed will cannot be revived, unless the reviving instrument contains a copy or the terms.  On the other hand, at Common Law, a codicil referencing an existing will "republishes" that will, furnishing evidence of the testator's considering his will as then existing.  And because the Wills Act, 1837 did not abolish the doctrine of republication, the principle still operates.  Both revived and republished wills are deemed executed on the revival or republication date. 

An attempt to revive a will that was never actually revoked may have the result of republishing that will at the time of the attempted revival.  However, attempting to republish a revoked will not revive a revoked will, unless the acts of republication also satisfy the requirements of a revival (which include the form requirements of the Succession Law Reform Act.  Specific uses of the doctrine of republication are discussed in detail in Macdonell, Sheard and Hull on Probate Practice, 4th ed., Rodney Hull, Q.C. and Ian M. Hull (Carswell: Toronto, 1996), pp. 116-119. 

Have a good day,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

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My colleague Natalia Angelini blogged on February 18 of this year about the increasing possibility that independent, adult children may be entitled to dependant support.

A 2009 Ontario Bar Association paper by Susan Woodley concluded that moral obligations of deceased parents in Ontario may require them to provide proper and adequate support to their children, spouse and dependants.

While the legislation in British Columbia clearly distinguishes any case from that province, a consideration of a recent case on point illustrates the roots of this evolving trend. 

In Sikora v. Sikora Estate 2009 BCSC 195, two of four adult sons of the testator brought an action under B.C.'s Wills Variation Act.  The Deceased had one child by his first marriage, three children with a subsequent common-law spouse, and at his death he was married to the defendant, San Meei Sikora. The Deceased’s residue to be divided amongst three sons equalled just over $11,500.

The two plaintiff brothers maintained contact with their father despite a difficult childhood. Each plaintiff provided evidence of respective incomes of about $90,000 and $35,000 and described their relationships with their father whom they assisted in his business and investment properties over the years. The Deceased’s wife’s responses created some credibility problems for her.

Justice Cullen reviewed the case law from the Supreme Court, Tataryn v. Tataryn Estate and a B.C. case, Clucas v. Clucas Estate (1999), 25 ETR (2d) 175 (BCSC) that summarizes the principles of the Wills Variation Act.

In Sikora, the Deceased’s wife accumulated her own assets while the Deceased did not. The plaintiffs showed that despite their independence their father had a moral obligation towards them.  The residue of the Deceased’s estate diminished in a manner that favoured his surviving wife and his moral obligation to his spouse was less firmly established than in other cases.

The Deceased used his money to purchase the matrimonial home, allowing the defendant to invest her money and increase her own assets. The plaintiffs succeeded and were therefore registered as tenants in common on a property with a life interest to the defendant.

Thank you for reading this week.  Enjoy your weekend.

Jonathan

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In keeping with yesterday’s blog on a British Columbia real estate matter, today I focus on another BC case - Albas v. Gabriel 2009 BCSC 198 - that involves the Indian Act, a federal statute. 

For a quick recap of the interplay between provincial and federal jurisdiction regarding estate matters and First Nations people living on reserves, I refer to David Smith’s 2007 blog: The Administration of Estates under the Indian Act. 

Albas v. Gabriel involved an action by the plaintiff, as executor of the estate, for a declaration proving the deceased's Will in solemn form.  The defendant beneficiaries appealed to the Minister of Northern and Indian Affairs because the Minister has jurisdiction to approve a Will made by an Indian and to confirm the appointment of an executor to administer the estate. Specificially, the Minister’s authority is provided by section 43 of the Indian Act.

A member of an Indian Band and a resident of a reserve, the deceased operated a trailer park and he was a “locatee” of the land because he owned “certificates of possession”: valuable assets that he left equally to his daughter and two step-children. This was just one of the businesses with which the deceased was involved.

The daughter challenged both the validity of the Will and the administration of the estate. The judge determined that the daughter believed that if the Will was declared invalid, she would inherit the entire estate.

Because of the Will challenge, the Minister transferred jurisdiction over the estate to the Supreme Court of British Columbia pursuant to s. 44(1).

Ultimately, the Court found that the Will was valid because it was not forged and the testator had capacity as well as knowledge of the Will which he approved.

Enjoy your day.

Jonathan

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Howard J. Feldman made a presentation on the circumstances where a net family property ("NFP") equalization can set aside an estate feeze.  He also discussed structuring the estate freeze transaction to qualify as an exclusion from the transferee child's NFP. 

To refresh: the classic estate freeze is a transaction involving a business-owning parent and his or her child.  The parent transfers the equity shares in the business to the child but retains control of the company through preferential shares ("prefs").  The prefs have a fixed redemption and liquidation value, so all capital growth is with the equity shares transferred to the child.  The parent "freezes" his own level of equity in the business, leaving future capital growth to the child.  The goal is to avoid the child receiving the equity in the company on the parent's death, because the capital gains tax liability would presumably have grown significantly.  Capital gains tax is payable when the parent transfers the shares under the estate freeze transaction, but presumably smaller than it would be on the parent's death.  

The problem is that an estate freeze during the transferor parent's marriage potentially removes assets from that parent's property for the purposes of the NFP equalization.  This can conflict with the philosophy of the NFP equalization payment, which is that marriage is a partnership and spouses' collective increase in net worth during the marriage should therefore be evenly divided between the spouses at the end of the marriage.  The parent's subsequent death or divorce can trigger a challenge by the spouse of the estate freeze. 

Among Mr. Feldman's points and recommendations:

• the form of the transaction and relevant documents is critical (see the paper for reasons)
• the solicitor must have a well-documented file and written instructions from the client, due to the risk of the transaction being challenged
• Declarations to Revenue Canada and financial institutions are not considered binding in family law
• a gift of shares under a corporate reorganization may not excluded where there is not family trust, but beware that sooner or later the leading cases may be overturned (with a plethora of qualifications and circumstances detailed in the paper)
• gifting shares or the cash to buy the shares are subject to numerous, complex considerations (no pun intended)

This barely scratches the surface of the summary and recommendations.  It is well-worth the read.  The entire Six-Minute Estates Lawyer 2009 program can be purchased here.

Have a good day,

Chris Graham

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When an irresistable force meets an immovable object, we appeal to the Supreme Court of Canada. 

In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, the force is the Personal Information Protection of Electronic Documents Act ("PIPEDA") and the object is solicitor-client privilege.  Section 12 of PIPEDA grants the Privacy Commissioner express statutory power to compel a person to produce any records that the Privacy Commissioner considers necessary to investigate a complaint “in the same manner and to the same extent as a superior court of record”.  The issue in Blood Tribe was whether this conferred a right of access to documents protected by solicitor-client privilege.  The Court held unanimously that the broad grant did not contain the requisite specific express authority to override privilege.

The Court stated the rule that "general words of a statutory grant of authority to an office holder such as an ombudsperson or a regulator do not confer a right to access solicitor-client documents, even for the limited purpose of determining whether the privilege is properly claimed.  That role is reserved to the courts.  Express words are necessary to permit a regulator or other statutory official to “pierce” the privilege." 

The Court also noted that "while the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity."

Speaking of the Supreme Court of Canada, the law you're looking for just might be in the "unreported judgments" section of the Supreme Court's user-friendly website.  How does a Supreme Court decision go unreported?

Have a great day,

Chris Graham

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Does the Court have jurisdiction to set aside a Family Law Act election, or is such an election irrevocable?

This question was recently considered in the Ontario Superior Court of Justice decision of Iasenza v. Iasenza Estate 2007 CanLII 23351.

As background, Ontario’s Family Law Act (“FLA”) allows a surviving spouse to elect to either receive benefit under the deceased’s will (or on an intestacy if there is no will), or receive an equalization of net family property under the FLA. Normally, the surviving spouse seeks information regarding each of the options, and then elects for the greater benefit.

However, information regarding the values of each option is not always forthcoming in a timely fashion. The election must be filed within 6 months of the date of death, or the surviving spouse is deemed to elect to take under the will or on an intestacy.

The Court held that it did have discretion to set aside an election made in favour of an equalization. However, the Court noted that the discretion will be exercised sparingly and only in “restrictive circumstances where the interests of justice require it and where the balance of the interests of effected parties clearly warrants it.”

In considering whether to exercise its discretion, the Court will consider:

a.                  Was the election filed as a result of a material mistake of fact or law made in good faith?

b.                  Was there any responsibility or culpability on the part of the effected parties in relation to the election?

c.                  Was the notice of intent to seek revocation of the election given in a timely way, and in particular, how long after the 6 month filing period was notice given?

d.                  Has the estate been distributed or would interested parties otherwise be adversely effected?

e.                  Does the election result in an injustice to the surviving spouse in all of the circumstances?

On the particular facts of Iasenza, the Court decided to exercise its discretion and set aside the election filed by the surviving spouse. As a result, the spouse was entitled to receive 1/3 of the estate under the will, whereas she would have received nothing under the election.

Thanks for reading.

Paul Trudelle

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As we all know, it is not uncommon for any investor to occasionally experience a substantial decrease in the value of one of the stocks in his or her portfolio.  But what if the investor is a trustee?   

In light of the recent amendments to the Trustee Act which appear to embrace the modern portfolio theory, it will be interesting to see how the Court will utilize this theory to assess a trustee's investment performance. Section 28 of the Trustee Act adopts an approach that is consistent with the modern portfolio theory.  Under this section, a trustee is insulated from liability if “the conduct of the trustee, which led to the loss from the trust, conformed to a plan or strategy, for the investment of the trust property, comprising reasonable assessments of risk and return that a prudent investor could adopt under comparable circumstances”.

Under the “statutory legal list” approach, which I described yesterday, a trustee was limited to investing trust assets in authorized investments.   However, with the development of the prudent investor rule, trustees are provided with a broader range of investment choices, which will likely increase their responsibility in determining an acceptable standard of care.

Presuming that a trustee is found liable for breaching the standard of care, section 29 of the Trustee Act permits a court to assess “the overall performance of the investments” when it is assessing damages.  Based on the language of section 29, it appears that a trustee may be allowed to offset the loss of a bad investment against the gain of a good investment.

The trusts and estates bar will be watching with interest to see how the judicial consideration of the prudent investor rule evolves.

Happy Super Bowl Weekend!  Go Patriots!

Rick

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In my blog yesterday, I introduced the prudent investor rule as the standard of care for trustees when investing assets that are held in a trust. Today, I will address how a trustee’s investment performance may be assessed.

Prior to July 1999, trustees were required to make investments pursuant to the “statutory legal list” provided for in the Trustee Act. This had the effect of holding trustees accountable for each particular investment, rather then the investment portfolio as a whole. The principle was further illuminated by the anti-netting rule, which stated that a trustee, who committed a breach of trust, was not entitled to set off a gain in one transaction against a loss in another. However, through recent amendments to the Trustee Act, the statutory legal list was repealed and replaced with the Prudent Investor Rule.

The Prudent Investor Rule reflects the modern portfolio approach to investments, the emphasis being on the prudence of the portfolio as a whole as opposed to each particular component. This theory is captured in Section 27(5) of the Trustee Act. Section 27(5) requires “a trustee to consider … the role that each investment plays within the overall trust portfolio”. Furthermore, under section 27(6) “a trustee is required to diversify the investments of the trust property. It appears that under the modern portfolio approach, a trustee would not be breaching the standard of care, should he or she invest a substantial amount of trust assets into a single security. As described above, section 27(6) requires that the trustee consider diversifying the portfolio, which is necessary if the Prudent Investor Rule is to be followed. To conclude my topic, tomorrow I will consider the liability of a trustee with respect to the investment of trust assets.

Thanks for reading,

Rick

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Not all Wills provide for an outright distribution to the beneficiaries. In some cases, the assets of an estate are held in trust over a period of time for the benefit of one or more beneficiaries, sometimes in succession.  When a trustee administers a trust, he or she is entrusted to act for the benefit of others. As such, our common law and statutes impose standards that trustees must comply with when dealing with trust property.

With the recent plummet in the stock market, I believe many trustees are considering how the stock market losses have affected the trust investments and what action they should take in the circumstances. 

Section 27 of the Trustee Act addresses the standard of care for trustees when investing assets held in a trust. Section 27(1) states, “in investing trust property, a trustee must exercise the care, skill, diligence and judgment that a prudent investor would exercise in making investments”. Section 27(2) states that “a trustee may invest trust property in any form of property in which a prudent investor might invest”.

Section 27(1) and (2) outlines the prudent investor rule. When investing trust assets, a trustee must comply with the prudent investor rule to protect himself or herself from liability.   Section 28 of the Trustee Act, emphasizes this point as it states that a Trustee will not be liable for losses arising from investments if the standard of the prudent investor is met. Nevertheless, the issue remains how does a trustee meet the “prudent investor” standard? In keeping with this theme, tomorrow I will address how a trustee’s investment performance may be assessed.

Thanks for reading, and have a great day!

Rick

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Section 131 of the Courts of Justice Act establishes the authority for the Court to award costs. Section 131 states that the Court has absolute discretion in awarding costs, subject to the provisions of an Act or the rules of court. 

Before July 2005, the Rules of Civil Procedure provided some sense of certainty to the Court’s broad discretion in awarding costs as the Rules provided a costs grid. The costs grid suggested that costs were to be determined by an hourly rate multiplied by the time spent. In 2004, the Court of Appeal in Boucher v. Public Accountants Council set forth the general principle as to the fixing of costs pursuant to Rule 57.01 and the costs grid. With respect to costs, the Court stated that the overall “objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”. Subsequently, in July 2005, the Rules were amended. 

The amendment to the Rules abolished the costs grid and expanded on the list of factors, set out in Rule 57.01, which the Court may consider before making a cost award. Rule 57.01 was now expanded to include the principle of full indemnity and the reasonable expectations of an unsuccessful party to pay a cost award.

The principle of the reasonable expectations of an unsuccessful party to pay a cost award appears to provide the parties with some flexibility in obtaining the maximum cost award by permitting the successful party to establish the reasonable expectations of the unsuccessful party.  

Thanks for reading, and have a great day!

Rick

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Hello, my name is David M. Smith and I am a partner (and now one of the resident bloggers) at Hull & Hull LLP. The focus of this week's blogs will be on beneficiary designations. While the natural tendency is to focus on the assets of the estate, we know that the reality is that, quite often, those assets which pass outside of the estate by way of beneficiary designation will exceed the value of the estate assets.

Indeed, an increasingly common estate planning tool is to hold as many assets as possible outside of the estate, primarily as a legitimate means of avoiding estate administration tax (more commonly known as probate fees) and, in certain cases, protection from creditors.

The most common example of such assets that come to mind are Life Insurance, Registered Retirement Saving Plans ("RRSP") or Registered Retirement Income Funds ("RRIF"). Similarly, (and an issue to be considered in future blogs), assets that are jointly held (unless impressed with a trust for the estate) will pass to the surviving joint owner by right of survivorship.

The making and revoking of beneficiary designations are not always simple matters and, regrettably, litigation may ensue where there is uncertainty. Recent caselaw has raised some interesting twists on this developing area of estate litigation.

In Ontario, the provisions of Part III of the Succession Law Reform Act relating to the making of a beneficiary designation are contained in section 51 which reads as follows (within underlining added for emphasis):

s. 51(1) A participant may designate a person to receive a benefit payable under a plan on the participant's death,

(a) by an instrument signed by him or her or signed on his or her behalf by another person in his or her presence and by his or her direction; or (b) by will, and may revoke the designation by either of these methods.

s. 51(2) A designation in a will is effective only if it relates expressly to a plan, either generally or specifically.

A "plan" is defined for the purpose of Part III to mean a myriad of financial vehicles but generally relates to Pension Plans, RRSPs and RRIFs. The SLRA does not govern beneficiary designations under all pension plans.

The SLRA excludes plans such as RRSPs issued under Part V of the Insurance Act.

An "instrument" is not defined in the Act. The Act does not require that revocation by instrument follow any particular form or formality (Burgess v. Burgess Estate (2000) 52 O.R. (3d) 61.) Accordingly, it is not necessary for a beneficiary designation to be witnessed by two persons as is the case with a Will.

We will consider the revocation of beneficiary designations in tommorrow's blog.

Have a great day, David. --------

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In Cummings v. Cummings, the Court of Appeal affirmed the decision made by the application judge at first instance.

In coming to this conclusion, the Court of Appeal was strongly influenced by the concepts set out in the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate ([1994] 2 S.C.R. 807 (S.C.C.)).

The decision in the Tataryn case held that moral considerations were applicable to a determination as to the amount of a dependant's support award in the context of the British Columbia statute (The Wills Variation Act, R.S.B.C. 1979, c. 435).

Until the Cummings v. Cummings decision, the approach to quantifying dependant's relief claims in Ontario was to essentially ignore the Tataryn moral considerations approach. This was as a result of the fact that the Tataryn decision was an appeal from the British Columbia Court of Appeal and was in respect to section 2(1) of the Wills Variation Act, which included substantially different wording than that of the SLRA. The Wills Variation Act assists dependants where there is a will which does not "in the Court's opinion, make adequate provision for the proper maintenance and support of the testator's wife, husband or children".

It is this language that has allowed the British Columbia Courts to approach the whole question of quantifying dependant's relief on a very different basis and on a moral conviction approach. The language in the Wills Variation Act is broadly drafted and essentially allows the Court to do what it thinks is adequate, just and equitable in the circumstances.

With the Cummings v. Cummings decision essentially embracing the decision of Tataryn, a very different approach must be considered in respect of quantifying dependant's relief claims in Ontario.

We hope this case gives you an idea of the application of the basics legal definitions and terms.

All the best, Suzana and Ian. --------