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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Part V of Ontario's Succession Law Reform Act ("SLRA") establishes a mechanism whereby qualifying dependants can claim support from the estate of a deceased.  Section 72 of the SLRA is a deeming provision that includes certain non-estate assets as part of the estate for the purposes of calculating the value of the estate, and allows such assets to be charged ("clawed back") by a support Order made under section 63 of the SLRA. 

The recent case of Simson v. De Bartolo 2009 CanLII 38493 (ON S.C.) interprets section 72(1) and applies Cummings v. Cummings 2004 CanLII 9339 (ON C.A.), the Court of Appeals decision holding that support awards are subject to moral considerations.  One issue following Cummings has been whether moral considerations justify a support award in and of themselves, or whether moral considerations are merely relevant to quantum of support following a determination that a support award is appropriate.

The applicant in Simson v. De Bartolo was litigation guardian for her child, born out of wedlock to the deceased and the actual support claimant.  When the applicant told the deceased's wife about their relationship and the child, the deceased transferred these properties to his wife (from joint ownership) and made a will disinheriting the child.  Later, the deceased died virtually penniless.  At issue in a motion was whether properties transferred by the deceased to his wife 10 years prior to his death could be deemed part of the deceased's estate under any enumerated grounds in section 72(1). 

Justice Lemon held that these assets could not be "clawed back" under s. 72(1).  Most particularly, a transfer of land to another party in the absence of an express written trust instrument does not fall within section 72(1)(e).  Of course, the transfer may still be impressed with a trust, as Justice Lemon pointed out, and if such trust pulls the asset into the estate, the SLRA provides for protection of the dependant pursuant to section 67.  Moral considerations were relevant in determining quantum of support, but not whether an asset forms part of the estate.

The facts in Simson v. De Bartolo appear to have precluded the court from addressing the Cummings question, at least in the motion being heard.  However, section 72 has been clarified.

Enjoy your day,

Chris Graham

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

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Pursuant to section 79 of the Substitute Decisions Act, the court has discretion to order a capacity assessment of an individual if the person’s capacity is an issue in a proceeding under the SDA. The court must also be satisfied that there are reasonable grounds to believe that the person is incapable. 

Where a capacity assessment has already been obtained, the court will be reluctant to order a further capacity assessment of an individual, unless the court has, for example, concerns about the lack of detail or objectivity within the assessment that has already been obtained. 

In Forgione v. Forgione, the court was concerned about the adequacy of the assessment carried out by a medical doctor. The court did not know what background information the doctor had or what, if any, influence anyone other than one family member may have had on the process. The report was very brief and consisted largely of conclusions without analysis. There were a number of facts and conflicting versions of facts which, in the court’s view, warranted further examination because they raised questions about the capacity and vulnerability of the incapable. A second assessment was ordered.

In Mesesnel (Attorney of) v. Kumer, Greer, J ordered a second assessment. It was the attorney’s position that the doctor had taken a strong personal dislike to him and that such dislike had influenced the doctor and affected the doctor’s objectivity. The doctor had originally been ordered by the court to prepare one comprehensive report; instead he prepared three separate reports which he made available over a three-month period. Moreover, none of the standard tests, except the Folstein test, was employed by the doctor, regarding the capability of the person to manage his affairs. The doctor’s criticisms of the attorney throughout the report were enough, in the court’s view, to raise the suspicion of bias in his reports.

While Greer, J. was aware that an assessment could cause the incapable some anguish, she was of the view that it was essential to have a second assessment in order that there be full and fair medical and neurological data before the court when the issues were determined.

Justin.

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The superrich likely have the market cornered when it comes to epic estate battles - Howard Hughes, J. Howard Marshall (i.e. Anna Nicole Smith), and E. Howard Hunt (of silver fame) - quickly come to mind.

However, even the mildly famous or sainted can have their moment in the estate spotlight.  Recently, Luciano Pavarotti's family was in the news when a dispute arose among his offspring in respect of his considerable fortune.  They have apparently reached a settlement.

I also read with interest a recent US newspaper article indicating that two of Martin Luther King's children had filed a lawsuit against a third regarding a dispute over the civil rights leader's estate (J. Edger Hoover would have loved it).  Bernice King and Martin Luther King III filed a lawsuit in Atlanta in order to force their brother, Dexter King, to open the books of their famous father's estate.

From what I understand, the lawsuit claims that Dexter King, who is the executor of his father's estate, has refused to provide his brother and sister with documents concerning the estate's administration.  The lawsuit claims that Dexter King and the estate "converted substantial funds from the estate's financial accounts…for their own use".  The siblings were never told beforehand and are now seeking financial records and other documents in order to investigate the administration of the estate. 

Martin Luther King's "dream" seems to have stalled when it comes to sibling rivalry and the fortunes of his estate.  However, on a more serious note, the dispute once again reminds us of the importance of transparency in the administration of an estate and open communication between executor and beneficiary.

Thanks for reading.  Auf Wiedersehen