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The intense media coverage of the raid on the polygamist ranch in Texas has also generated scrutiny of Canada’s polygamous communities.

Polygamy is against the law in Canada but there has not been a prosecution of a case in over sixty years. For a background on the issues surrounding polygamy and Canadian law, read A Polygamy Primer on Osgoode Hall’s law blog, The Court.

The primer provides a link to a collection of research policy reports commissioned by the federal government exploring polygamy in the Canadian context. While the focus of the papers is on polygamy in a criminal law and family law context, the paper by Alberta’s Civil Liberties Research Centre discusses the civil case of Yew v. British Columbia (Attorney General) [1924] 1 D.O.D. 1166 (B.C.C.A.). In the case, the British Columbia Court of Appeal gave limited recognition to a polygamous marriage that had occurred in China to allow the two surviving wives to receive their annuities from their husband’s estate at a lower tax rate.

It will be interesting to see if the possible recognition of polygamous unions in the family law context will have an impact on estates law.

Enjoy your weekend,

Diane Vieira

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An Alberta case, Re Boychuk, looks at the legal and moral obligations to provide support to a dependant of the estate.

The testator executed his Will in 2003 when he was 89 years old leaving his entire estate, just over $62,000.00, to two of his five children and leaving nothing to his wife of 71 years who resided in a nursing home. The testator’s wife suffered from dementia and a stroke and had been living in a long term care facility since 1997.

Alberta’s Office of the Public Trustee, as the trustee of the wife’s property, brought an application pursuant to Alberta’s Dependant’s Relief Act for an order that the residue of the estate be paid to the Public Trustee for the proper maintenance and support of the wife. The Respondents were the executors of the testator’s estate.

The Court found that the wife was a dependant of the estate and adequate provisions were not made for her maintenance. The Court rejected the Respondents’ argument that the support claimant currently had a surplus of income over expenses for each month, including a trust for unanticipated expenses, and no need for any additional support. The Court found that while the support claimant may presently be able to meet her expenses it does not mean that she will always be able to nor does it mean that she should be deprived of her entitlement and stated that the testator had both a legal and moral obligation to provide support to his wife. The Court also noted the length of the marriage and the extensive contributions the wife had made to her husband’s estate.

Thanks for reading,

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The Court of Appeal recently rendered its decision in Madore-Ogilvie and Ogilvie v. Ogilvie Estate, 2008 ONCA 39.  One of the issues was whether the proceeds from a jointly owned life insurance policy could be included in the deceased’s estate for the purposes of satisfying a dependant’s relief claim. 

One of our previous blogs reviews the facts of the case and the appellate decision of the Divisional Court, which I will not repeat except to say that the Divisional Court reversed the application judge’s finding that the policy could be included as part of the estate, and decided that the contractual rights of the spouse to the joint policy trumped the needs of the deceased’s dependants.

Two of the minor children appealed the Divisional Court’s decision and asked that the application judge's decision be restored.  The deceased’s spouse cross-appealed. 

The Court of Appeal dismissed both the appeal and the cross-appeal, finding as follows:

-          the policy was not caught within the ambit of section 72(1)(f) of the Succession Law Reform Act;

-          the policy was not an arrangement that was made to jeopardize the maintenance of the deceased’s dependants; and

-          section 199 of the Insurance Act did not apply to the policy.

Have a good day,

Natalia

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I thought I would close off this week’s blogs with a recent decision that reviews the law on surrogate parents.

In M.D. v. L.L. a married couple wished to have a child.  Unfortunately, the wife, M.D., was unable to bear children.  So, the couple turned to a family friend, L.L., who was willing to act as a surrogate mother.  M.D. and L.L. papered the terms of their understanding in a Gestational Carriage Agreement. 

After L.L. gave birth to the child, a Statement of Live Birth had to be completed and filed with the Registrar, which statement required L.L. to place her name on the form as the “mother” of the child, notwithstanding the Agreement and the fact that M.D. and her husband were the genetic parents of the child.

M.D. and her husband sought orders declaring themselves to be the parents of the child, and declaring L.L. and her husband not to be the parents.  The Court granted the orders sought, and in so doing held that despite a statutory definition defining “mother” by reference to birth, the genetic parents were the true parents.

This decision is likely going to be the authority relied upon in surrogate parenting litigation to come.

Have a great long weekend!

Natalia

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In a recent Superior Court of Quebec decision a family’s patriarch, Leon, died intestate in 1968.  The main asset of his estate was his home (registered in Leon’s name) where he resided with his wife and son, Walter.  At law Leon’s wife was entitled to 1/3 of the home, and Walter was entitled to 2/3 of the home.  Following Leon’s death, his wife and son continued to live in the home and dealt with it as their own property.

Leon’s wife died intestate in 1983.  Her sole heir was Walter.  The home remained registered in Leon’s name, but Walter continued to live there and dealt with it as his own property.

Walter disappeared after 1992, and in 2004 was declared dead.  Walter’s maternal and paternal cousins began fighting over Walter’s estate.  While all the cousins agreed they were equal beneficiaries of Walter’s estate, the argument of the maternal cousins was that they were beneficiaries of his mother’s estate (including her interest in the home), since she died intestate and Walter had never formally accepted her estate.

After applying various provisions of the Quebec Civil Code, the Court held that Walter, by being an absentee, was deemed to have accepted his mother’s estate because an absentee can only renounce through his representative. 

This case reveals an interesting distinction between Quebec and Ontario legislation, the latter of which does not impose any obligation to accept or reject one’s interest in an estate.

Until tomorrow,

Natalia

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

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

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

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

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

Have a great weekend!

Natalia

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

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

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

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

Thanks for reading,

Natalia

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

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

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

Thanks for reading,

Natalia

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

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

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

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

Have a good day,

Natalia

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It seems with increasing environmental disasters, marked climate change and the media buzz resulting from the release of An Inconvenient Truth, that environmental consciousness has risen to an all-time high in North America.   While lots of us do our part at home i.e. by recycling, composting and unplugging unused electrical items, more could be done at the workplace. 

I found a write-up on this issue in this week’s Globe and Mail, which noted an astounding claim by GreenPrint Technologies (a company that sells software to eliminate unnecessary pages before printing), that Americans use enough sheets of paper each year to build a ten-foot high wall that would stretch from New York to Tokyo and beyond.  

Despite the 20^th Century predictions of a paperless office, it seems we are far from achieving that goal, particularly in the legal arena where people may be more fearful of relying solely on computer systems to store important documents, and where hard copies of file materials are often required to conduct our practice. 

I wonder whether a truly paperless office is realistic given the nature of our work.  Perhaps the best we can hope for is to significantly reduce our paper usage.  A start may be to send e-mails ending with a message along the lines of “Print only when necessary”, which environmentalists reportedly say have real value.   Other options are to cut down on extending e-mail trails and to avoid sending written communications in multiple forms.

Have a great weekend,

Natalia

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This is the title of an interesting article I read in Perspective (Fall 2007 issue) that reviews some steps and considerations that may help strike the right balance for your family when estate planning, which I have touched upon below.   

1. Talk about the future – ask your children how they see your estate being distributed, correct imperceptions and incorporate others, let them know you do not want a dispute over your estate, and be realistic.

2. Deal with differences – if your children have achieved different levels of monetary success, consider the following questions:

1. Have the opportunities been equal? Take this into account to avoid future resentments.

2. Are current circumstances beyond a beneficiary’s control? If an heir has a medical or physical infirmity you may wish to balance the amount gifted with other benefits they receive.  Think about creating a trust for a vulnerable person suffering from substance abuse or other addiction to ensure ongoing financial structure.

3. Are lifestyle choices a factor?  If you oppose a lifestyle choice, rather than exclude that person consider stipulations on the gift that could allow it to be used for purposes consistent with your family values.

4. What about your family business? If your goal is to maintain the family business and family harmony, one solution is to issue different classes of shares so there is equal ownership and those working in the business retain control.

3. Your Way – it is important that your family understand your thinking in order to avoid misunderstandings and potential litigation, which you can convey to them via a family meeting or a family letter with follow up discussion.

Have a good day,

Natalia

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The fifth annual Intensive Wills and Estates Workshop is coming up!  It was recently announced in the Osgoode Professional Development circular, and is touted as an interactive workshop designed for practitioners wanting to update their knowledge and hone their skills in estate planning and administration. 

Some of the things you will learn are:

· how to take more comprehensive instructions and notes

· techniques for substantiating capacity

· effective strategies for using a roadmap and checklist when drafting

· how to avoid negligence claims when executing a Will

· strategies to avoid or lessen probate fees and estate tax liabilities

· how to handle situations where a challenge to a Will is anticipated

· methods to protect yourself when acting as an estate solicitor in both testate and  intestate situations

· how to manage unusual applications for Certificates of Appointment

The workshop is being led by Jordan Atin, barrister & solicitor (and associate counsel to Hull & Hull LLP), and will be taking place over three Wednesday evenings - January 30, February 6 and February 13, 2008 – from 6:30 p.m. to 9:30 p.m.  

As the nature of the workshop is interactive, it allows for lots of questions and discussion.   Participants will critically analyze and apply the law to the issues covered, and will receive insight from leading practitioners in the area.  They will also be given valuable precedents. 

You can register at www.osgoodepd.ca.  See you there!

Natalia  

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In the latest edition of CCH Will Power (November 2007, No. 155) a Court of Quebec decision in Molnar v. Kovacs was discussed, where a gift was compelled to be returned due to ingratitude.

The mother in this case owned a house and subsequently bought a mobile home with monies loaned to her, guaranteed by a mortgage on her house.  Pursuant to the mortgage agreement, the mother was liable for the loan even if the ownership of the house was subsequently transferred.  The mother moved into the mobile home, and her son and his girlfriend began living in the house, paying rent to the mother of $400/month (which amount covered the mortgage payments). 

The mother later agreed to give the house to her son, evidenced by a signed deed of donation.  The mother then moved back into the house, living there for a time with her son and his girlfriend. The son continued to make the $400 monthly payments to the mother.

Relations between the mother and her son deteriorated, and the mother moved back into her mobile home.  The son stopped making the monthly payments to the mother, and the mother ultimately commenced proceedings against her son to get her house back, based on her son’s ingratitude (pursuant to a provision of the Quebec Civil Code (art. 1836)).

The Court held that by stopping the monthly payments the son demonstrated “seriously reprehensible” behaviour towards his mother (particularly given her age, modest income and ongoing obligations to meet her mortgage payments), ordered that he return the house to his mother and declared that the mother was the owner of the house retroactively to the date of the donation of the house.

Have a good day,

Natalia Angelini  

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Last week Justin de Vries blogged on the all too common situation where family members of an incapable person feel frustrated and marginalized while a loved one is being legally cared for by someone they do not like or trust.  While reading a recent article in the Globe and Mail by Rebecca Dube, I couldn’t help but see how the feelings of frustration and marginalization can be exacerbated by the complicating circumstance of a loved one striking up new romance. 

Ms. Dube notes that it is common for people with various forms of dementia to forget that they are married and to fall in love with another person.  The forgotten spouse is usually left either struggling with the new state of affairs or coming to a place of acceptance.  The latter may be a difficult thing to accomplish.  However, Sandra Day O’Connor, a retired Judge of the U.S. Supreme Court, has done exactly that.  Her husband of over 50 years recently moved into a nursing home and, after initially dealing with depression, commenced a relationship with a woman there who, like him, suffers from Alzheimer’s.  While Ms. O’Connor reportedly felt relieved that her husband finally was content in his nursing home, others may have a harder time getting over the grief and anger of losing their spouse in this way.

Ms. Dube’s article reminds us of how important it is to recognize that people with dementia still feel emotion and continue to have a need for love and intimacy.  The difficulty, particularly for a spouse who is also the legal caregiver of their incapable partner, is not letting the devastation felt in such circumstances get in the way of their decision-making, which must be guided by what is in the best interests of the incapable person.

Have a good day,

Natalia Angelini  

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In Singh Estate v. Shandil, 2007 BCCA 303, the testator had executed a 2003 Will and an accompanying Statutory Declaration (SD). The SD contained a clause forgiving a $100,000 loan to the testator’s daughter.   

The testator’s relationship with his daughter subsequently soured. In 2004, he signed a document purporting to revoke the SD. He also swore a new Will which specifically instructed the executor to collect the loan. A demand was made for repayment. Shortly thereafter, the testator died and his estate commenced a claim for repayment.

At first instance, it was found that the daughter met the two required elements to establish a gift, namely, that the donor intended to make a gift, and that the donor delivered the gift.  It was also found that the SD was irrevocable as there was no express power to revoke (an implied power won’t suffice). The estate trustee argued that because the 2003 Will was referenced in the SD, the SD was merely designed to explain the provisions of the 2003 Will, and was thereby a testamentary document.   The judge did not accept this argument (I recommend reading the case to get a full flavour of the circumstances), and the trial decision was upheld by the British Columbia Court of Appeal.  

So when your client intends to document his/her forgiveness of a loan made to a loved one, it might be worthwhile to consider including a revocation clause in the SD, or like document.  That said, I wonder whether it is a viable option in practice. Perhaps waiting until your death (by forgiving a loan in your Will) is a simpler and better way to approach it.

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In the September, 2007 edition of Will Power, you will find an article with the above-captioned title, where the author comments on Bolduc v. Carrier, 2006 QCCS 5485, a decision of the Quebec Superior Court with an interesting and tragic fact-scenario.  

The parents of Anthony, a three-year old boy with brain cancer, set up a trust for monies donated by the public to help pay for Anthony’s medical care. More than $450,000 was donated and deposited into the trust account. Anthony’s parents were the joint settlors of the trust, and three trustees were named, Anthony’s father, Anthony’s aunt and a family friend. 

Anthony sadly died a few months later.  At that time approximately $200,000 was remaining in the trust (about $250,000 of undocumented expenses had been paid out).  In addition to an accounting issue raised in respect of the spent monies, which I will not address in this blog, the trustees couldn’t agree on what to do with the trust balance. Anthony’s father wanted the money to go to him and his wife, and relied on the Quebec Civil Code (article 1297) to support their position. The other trustees wanted it to go towards payment for “sick children and their care”, pursuant to an article in the trust deed that granted the trustees the discretion to use the funds in that manner.

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An article in Saturday's Globe and Mail with the above-captioned title caught my eye. The author, Tim Cestnick, sends the message that "doing nothing - that is, refraining from certain transactions" - can often make sense in tax planning. To illustrate his point, he shared a story of Ruth, an elderly woman with a dilemma involving her cottage and her children. 

Ruth owns a cottage that she rarely uses. The cottage was purchased for $50,000 in 1975, that same amount was invested in it over the years, and it is currently worth $500,000. Ruth decides to give the cottage to her two children. The problem? If she does so, she'll be deemed to have disposed of the property at fair market value, which could trigger a taxable capital gain and a potential tax bill of almost $100,000. That result isn't workable for Ruth, particularly as there will be no sale proceeds available to pay the tax bill.

While it was noted in the article that Ruth may be better off waiting until she dies to transfer the cottage to her kids (this will defer tax until that time), the fact is that she wants it transferred now for sentimental reasons. The solution? "Sell" the cottage to her children for fair market value in exchange for promissory notes. The notes will be worded such that Ruth will collect the proceeds over at least five years. This will allow Ruth to pay tax on her capital gain over a five-year period. As Ruth has no intention of collecting on the notes, she will make sure to forgive the promissory notes in her Will (which will have no adverse tax consequences).

This article illustrates how a creative approach tailored to a person's unique circumstances is often needed in tax and estate planning. Mr. Cestnick reminds readers to visit a tax pro if you hope to try this, and I would recommend consulting with an estate planning lawyer as well. You should also tune in to Ian Hull and Suzana Popovic-Montag’s recent pod-casts focusing on cottage properties.

Have a good day,

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This summer's edition of VOX announces the unveiling of the newly renovated Toronto Lawyers Association's (TLA) Lawyers Lounge (located at 361 University, 2nd Floor), and highlights some of its features, which I review below. 

Aside from the Lounge sporting a modern and functional new look, the upgrades and benefits include easy access to courthouses, wireless internet and a generous working space.  While downtown practitioners make frequent use of the Lounge, it is especially helpful for members who practice outside the city centre.  With the library just one floor above, it also makes for a handy place to work when preparing for court or during breaks between court attendances.  Another option TLA members should contemplate is using the space to hold meetings, functions and receptions.  

The new digs are an additional perk offered to TLA members that should be enjoyed.   A great time to drop by will be at the Open House scheduled for September 10 - 14, 2007.    

Have a good weekend!

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Can a dependant's need only arise once?  This was the question recently answered by the Manitoba Court of Appeal in Zenyk v. Kowalyk [2007] M.J. No. 135.

In this case the deceased, a mother of four, provided in her Will that two of her children, including her son with cerebral palsy, could live in her house for one year after her death, after which time the house was to be sold and the proceeds added to the residue of her estate.   The one year anniversary of the mother's death came and went, and the son never moved out of the house.  When two of the daughters brought an application for an order to remove him, he brought a dependant support application seeking possession/transfer of the house. 

There was no dispute that the son fell within the definition of a "dependant" at the time of his mother's death.  However, the son's application was commenced pursuant to a legislative exception to the six-month limitation period (see section 6(3)(b) of The Dependants Relief Act, C.C.S.M., c. D37).  The daughters argued that his application should be denied, because in order to fall under that exception the son's need could only arise once, after the expiry of the limitation period. 

While the trial judge agreed with the daughters' argument, the Court of Appeal did not.  In coming to its decision, the Court found that the trial judge's approach was not in keeping with the remedial purpose of the Act. Its interpretation of the Act contemplates the court being able to consider the changing circumstances of a dependant.

This decision reveals Manitoba's perspective is drawing closer to Ontario's, which has legislated that courts have the discretion to allow, if they consider it proper, an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application (see section 61 of the Succession Law Reform Act, R.S.O. 1990, c. S.26).

Have a great day!

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As litigators, we use the Rules of Civil Procedure to ensure the required procedural steps are taken when preparing, serving and filing court materials.  However, when it comes to estate matters knowing the Rules isn’t always enough.  

For instance, the Toronto estates court office recently refused to allow a guardianship application to proceed together with an application seeking a passing of attorney accounts, notwithstanding that they were related matters and that there is no such requirement to commence two separate applications under the Rules or applicable legislation. 

To avoid this type of situation happening to you, I recommend familiarizing yourself with the practice of the estates court office you are dealing with, which may have its own protocol. Reading the Practice Directions will also assist. In so doing you will learn, for example, that while pursuant to the Rules a notice of application can be issued by a court office either on its own or as part of an application record, the Toronto estates court office will not issue a notice of application if it is not accompanied by the record.  

While the obligation to have an application record assembled at the get go can become a hindrance when an urgent court date is needed for interim relief, i.e. a motion for a certificate of pending litigation, one way to cope in that circumstance is to have a Caution registered on title to the property in question, which will give you a 60 day window to get your application materials completed and your motion date booked. 

Hope this helps!