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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On August 15, 2011, I blogged on the decision of Hennessy J. in Makarchuk v. Makarchuk, 2011 ONSC 4633 (CanLII).  There, the court found that a separation agreement did not preclude the surviving spouse from benefitting under the deceased’s will.

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. 

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A “festival” running at London’s Southbank Centre in January explores death from all angles. The festival will explore attitudes towards death, using music, workshops, literature and art installations. Festival events range from the whimsical to the serious.

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. 

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Renowned blues singer Etta James died last week at the age of 73. She succumbed to chronic leukemia, complicated by dementia and kidney problems.

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. 

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I savoured every moment of the Christmas break.  How could I not when eating, sleeping, movie-watching and hanging out with family and friends occupied most of my time? So I couldn’t help but fantasize about how great it would be to live out my retirement as a lady of leisure.  

While it seems appealing to me now, the reality when the time comes may be something very different. For many the transition from the working world is not a smooth one – from both a financial and emotional standpoint. So how do we get ready?

From a financial perspective, putting your finances in order is necessary. The Wall Street Journal offers a simple list on how to do this.  An interesting article on the subject also speaks to being emotionally ready, and notes as follows:

·                    Think in terms of retiring to something, not retiring from something - "The Journal quotes Jonathan Guyton of Cornerstone Wealth Advisors in Minneapolis: If your definition of retirement is framed in terms of what you are leaving, you are setting yourself up for a much more difficult transition emotionally. Even if it’s just some relatively small thing that you are energized about and this is something you get to do right now … you generally do much better.”

·                    Phase into retirement – "first scaling back your hours and responsibilities, or maybe taking a part-time hobby job, so that you don’t suddenly have an endless amount of time to fill. This strategy has the added benefit of keeping some wage income, which will help stretch your nest egg."

Another idea the author cites is “practice retirement”, which entails staying on the job longer (either full-time or part-time), but instead of saving your income, use it to take vacations, fund a hobby or indulge in other ways that will help you figure out how you want to spend your retirement. 

Enjoy the weekend!

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

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A recent study by the Alzheimer Society of Canada reportedly indicates some compelling information about Alzheimer’s diagnosis, including:

·                    it is estimated that 1.1 million Canadians will be affected by the brain disorder in the next 25 years;

·                    almost half of Canadians surveyed lived a year or more with their symptoms without seeing a doctor, and 16% of this group waited more than two years;

·                    among the most common early symptoms were frequent memory loss, disorientation of time and place and changes in personality, and more than half of the respondents indicated the reason for the delay was the belief that symptoms were part of “old age”; and almost a third of respondents cited their family member refusing to see a doctor as cause for delay; and

·                    delayed diagnosis results in a large treatment gap, and prevents people from getting valuable information about medications, support and better disease management.

The Alzheimer Society of Canada reportedly emphasizes the importance of getting the word out about investigating dementia, since awareness can help one get support, plan for the future and take advantage of the pharmacological and other ways to deal with the disease.

Have a good day,

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

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A recent English article reports that its Law Commission recommends that unmarried couples who have lived together for five years or more should be able to inherit from each other without writing a Will. The author notes certain other recommendations, contained in the Inheritance (Cohabitants) Bill:

·                    the entitlement should be applied after two years of cohabiting if a couple has a child, providing the child was living with the couple when one parent died;

·                    qualifying cohabitants should have the same entitlement under the intestacy rules as a spouse; and

·                    if the deceased has a husband or wife from a "fossil" marriage – where a couple are living apart but have never divorced – the surviving cohabitant has no entitlement to any of the estate.

The Law Commission apparently notes that cohabiting couples are among the people least likely to have a will. Under the current English intestacy laws, similar to our legislation, property is passed on to family members in order of closeness of the blood relation. However, like our system, unmarried partners are currently not entitled to the deceased partner’s property, but can apply to court for support. That said, this can be a costly and time-intensive process. I have always found it unfortunate in cases where long-time common-law spouses had to bear the expense and emotional drain of fighting for their dependant support award.   

Given the reality here and abroad that cohabiting unmarried couples represent an increasing percentage of families, this type of legislative change may soon be solidified in the United Kingdom and make its way to us. It seems from the comments I read about this article that people are divided on the subject. I, for one, think that it is time for this type of review, especially if it could lead to a reduction in or narrowing of the types of dependant support claims we see in our system.

Thanks for reading,

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

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Who doesn't love a good rags to riches tale, especially at this time of year?  Well, some of you may be a bit envious of this one.  Probably because it starts with Tommaso, a stray cat in Rome, and ends with Tommaso, the pampered feline worth $13 million.

Reportedly, Tommaso inherited the money when his owner, Maria Assunta, recently died at the age of 94.  Assunta was the widow of a property tycoon, and had no living relatives.

The estate's lawyer arranged for the assets and the cat to go to Assunta's former nurse (in Italy one can not gift assets directly to their pets), who now lives in an undisclosed location.  Unsurprisingly, there have been lots of offers to adopt Tommaso.

Tommaso is the richest cat in the world (and third amongst the wealthiest pets). Top ranking goes to Gunther IV, a German shepherd who reportedly inherited $372 million dollars from his father, Gunther III, the beloved companion of an eccentric German countess.  Kalu the Chimp finishes in second place by virtue of an $80 million dollar inheritance. 

Other rich animals are those of Oprah Winfrey, who is apparently planning to leave her dogs $30 million.   Leona Helmsley famously left $12 million to her little dog Trouble, although after a challenge to this gift, Trouble's pot was cut to $2 million.  And Michael Jackson left Bubbles the Chimp $1 million.

I can hardly imagine what kind of fanciful Christmas present Tommaso will be getting, although I'm glad my doggie will be happy with a run in the park with her friends, and lots of hugs and kisses.

Merry Christmas and Happy Holidays!

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

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In a recent Québec decision, Ms. Rodrigues, the young widow of the late boxing champion, Arturo Gatti, has succeeded in her battle over her late husband’s estate.  

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. 

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Conflict of laws issues add complexity to what could otherwise be a straightforward estate administration. In a recent English article on the topic, examples of how cross-border issues can affect the operation of your will are provided. The most common issue noted is that of forced heirship.

Several European and other countries have forced heirship laws requiring a person to pass a fixed portion (typically between a third and one half) of his or her estate to children or a spouse. However, these succession laws may not always apply.   For instance, the author notes that when it comes to ones assets abroad, English courts apply domestic succession law to movable assets (i.e. investments, cash, bank accounts, personal possessions etc.) but may follow the succession law of the country where immovable assets are (i.e. land and property). 

In addition to the conflicts than can arise from cross-border issues affecting your will, there may also be added tax consequences.

Ways to minimize difficulties include:

                    making an additional will abroad for foreign assets, as this may eliminate language ambiguities and make it quicker and less costly to deal with the administration of your estate (any foreign will should not conflict with or revoke your domestic will - careful wording is often needed); and

                    obtain legal advice from foreign lawyers who specialize in the field of their own succession laws, both when making your will and when purchasing property abroad.

Thanks for reading,

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

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In Re Brooks Estate, 2011 BCSC 1606 (CanLII), a testator left a handwritten will in which he left his real property and two bank accounts to his “brother … Executor with Power of Attorney”. He goes on to list five other people and states “I would all the people named above to share equally in my estate [sic].”

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. 

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The onus of proving undue influence is on the challenger. By its nature, undue influence is often very hard to prove. However, the court may resort to a presumption of undue influence in certain circumstances.

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. 

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In an intriguing case out of the Prince Edward Island Court of Appeal, the question of whether a wife could claim damages for economic loss and loss of care and companionship against her husband’s estate arising from the husband’ own negligence which lead to his death was considered.

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. 

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I saw “The Descendants” on the weekend. It is a great movie in its own right, but also a great movie from the perspective of an estates and trusts lawyer. The movie raises a number of estates and trusts issues: trusteeship, powers of attorney, living wills, and the threat of estate litigation.

Without wanting to give away the plot, one of the issues referred to in the movie is the “rule against perpetuities”. I don’t expect that “rule against perpetuities” movies will be a new film genre. However, it is an interesting concept and significantly moves the story in “The Descendants” forward.

Simply put, and as well explained in the movie, the rule provides that no interest in a trust will be valid if the trust vests more than twenty-one years after the termination of some life in being at the time of the creation of the trust. The effect of the rule is that a trust cannot continue on indefinitely, and must vest at some point: that is, the trust must vest twenty-one years after the death of a prescribed person. 

Much case law, legislation and commentary has evolved in relation to the rule against perpetuities. However, the general application of the rule in most cases remains, and property in a trust cannot be held in the  trust indefinitely.  We cannot freeze the past forever, and must move on.

Thank you for reading.

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

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I like to end my week with a laugh or two. While there is nothing humourous about death, I must admit an article quoting the last words of some famous artists had me chuckling just a little. Some are poignant, some are funny and some are totally unexpected.

There are 15 quotes from various artists and you can vote online for your favourites. Here are my five favourites:

5.         “I should never have switched from Scotch to Martinis."  By Humphrey Bogart

4          "Dying is easy. Comedy is hard."  By George Bernard Shaw

3.         "My wallpaper and I are fighting a duel to the death. One or the other of us has to go."  By Oscar Wilde

2.         "Go on, get out! Last words are for fools who haven't said enough!"  By Karl Marx

1.         "Die, my dear? Why, that's the last thing I'll do!"  By Groucho Marx

Have a great weekend!

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

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A helpful article in the Toronto Law Journal (November 2011) speaks to the new Rules on time limits for examinations for discovery, specifically Rule 31.05.1(1), which provides that "no party shall, in conducting oral examinations for discovery, exceed a total of seven hours of examination, regardless of the number of parties or other persons to be examined, except with consent of the parties or with leave of the court".

In J.P. Leveque Bros. v. Ontario, a motion for leave to exceed the seven hour time limit was before the court. The motion was granted.

The motion judge stated that the court must consider the factors set out in Rule 31.05.1(2), including effective representation, cost efficiency and expediency.

This decision is instructive in that the court interpreted the limit of seven hours to mean seven hours of "actual discovery" on the record, such that it does not include breaks, adjournments, a party's bad conduct or unreasonable interference that results in unduly shortening examination time.

The court also stated that: "...in circumstances in which the time limit agreed upon in the Discovery Plan has expired and counsel is at a crucial point in his/her examination on an issue central or germane to the case, flexibility ought to be brought to bear and that further time to a maximum of one hour to continue and conclude the examination would not be unreasonable in the circumstances".  Further, where there are multiple parties this additional one hour should be recovered by being deducted from the examination of another party.

Have a good day,

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

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A website called I-Tomb claims to be the world’s first virtual cemetery. It is reported that for the fee of $50 a year – which you can pre-pay for two decades – anybody can create an online “tomb” for a deceased person.  Apparently, it can even be adorned with virtual flowers, poems, tributes or video.

Another option available to you is to create your own virtual memorial site before you die.  The author notes that this service can carry complex instructions, messages or videos from you to ensure that your tomb is created as you want, after your death.

While the concept of an I-tomb may be hard to envision as having much popularity, the internet is already changing things.  For example, it has become commonplace to turn somebody’s Facebook page into a tribute page after death. Internet services also reportedly exist to send emails to relatives when loved ones die, or post public death notices.  Add the fact that physical burials are much more costly and the growth of the world's population will make finding space for such burials more challenging (see this article about a Spainish cemetery that is moving bodies from graves whose leases have lapsed in order to make room for new burials), and it seems to me that this virtual burial option will appeal to many.

Thanks for reading,

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

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In 1993, the Supreme Court of Canada ruled (with a five to four majority) in the Rodriguez case that section 24(b) of the Criminal Code was not unconstitutional in prohibiting assisted suicide. The following quote from the decision succinctly explains the reasoning of the Court:

“Assisted suicide, outlawed under the common law, has been prohibited by Parliament since the adoption of Canada's first Criminal Code.  The long‑standing blanket prohibition in s. 241(b), which fulfils the government's objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken.  This state policy is part of our fundamental conception of the sanctity of life.  ...  No consensus can be found in favour of the decriminalization of assisted suicide.  To the extent that there is a consensus, it is that human life must be respected.  This consensus finds legal expression in our legal system which prohibits capital punishment.  The prohibition against assisted suicide serves a similar purpose.  Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society.  Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts.  Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair.  The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society.  Section 241(b) therefore does not infringe s. 7 of the Charter.”

Notwithstanding this decision of Canada’s highest court almost 20 years ago, the Canadian Lawyer (October 2011 issue) notes that the issue is coming before the Supreme Court of British Columbia on November 15, 2011 in the case concerning the family of Kay Carter. Her family accompanied her to Switzerland, where she died by assisted suicide at the Dignitas suicide centre. The issues to be decided in the case appear to be whether Carter’s rights were violated by a law that prevented her from dying by euthanasia or assisted suicide in Canada, and whether Carter’s daughter and her husband broke the law by aiding her in planning for and going to the Dignitas suicide centre. Constitutional and conflict of law issues will likely both be at play at the hearing. 

The decision will be something to watch out for.

Thanks for reading,

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

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The opportunity of obtaining leave to appeal to the Supreme Court of Canada does not come around too often in our area of practice. While daunting, it is a challenge I would love to meet. That is why I was captivated by an article in the National (Volume 20, No 7) addressing what we need to know before seeking leave.

 The key points I noted are:

·                    Different test - it is not good enough to file the factum relied on before the Court of Appeal; you are addressing a different test - the public importance or national interest test.

·                    Reframe the Case as a Public Importance Issue – this is critical - Supreme Court Rules were recently amended to require applicants to highlight the public importance of the case at the outset of the written materials. While we are encouraged to lift our sights and put the judgment in a broader context, the difficulty may be that “public importance” has not been defined.  That said, some guidelines do exist, such as the issue of public importance must be central to the case and not moot or about to be dealt with by legislation.

·                   Pause – you may want to reflect for a week or two, then write a couple of pages about why the issue is one of public importance (not why the Court of Appeal erred) and have a colleague review it.

While the main theme here is public importance, given that only about 10% of leave applications are successful, and this test seems to be the gatekeeper, it is a point worth stressing.

Have a good day,

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

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Given the rapid developments in technology, it is only a matter of time before the days of a paper-reliant law practice will be a thing of the past. Our office is doing its part by going paperless and, although a major change, it is one that we have embraced. 

That said, we still use paper for certain aspects of our work, including to file materials with the courts. An article in the September issue (Vol 20, No. 6) of the Canadian Bar Association’s National addresses the fact that while e-discovery and technology has changed the way we litigate, the courts in Canada are lagging behind. 

E-trials continue to be rare in Canada (in contrast to the US). The Honourable Mr. Justice Gans has reportedly commented on the issue, suggesting that reticence from some judges to use a document management system in a trial and the fact that the (Ontario) Ministry of the Attorney General has yet to get behind the initiative, means that pressure to move the courts towards more e-trials needs to come from the lawyers. 

The author advocates the benefits of having this available to us in the courtrooms, including saving trial time and assisting in making clearer arguments as it will likely be easier to knit all of the documents, videos and images of evidence together.   

Enjoy the weekend,

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

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Friends do things for each other. Some more than others. At what point does the help and assistance given by one friend to another give rise to a claim for unjust enrichment? This was the issue considered in the recent British Columbia decision of Brennan v. Gardy Estate, 2011 BCSC 1337.

As stated by the Honourable Madam Justice Fenlon, the main issue in the case was whether one friend's contributions "were of a kind and magnitude to establish unjust enrichment or were simply part of the mutual enrichment inherent in a close friendship."

Fenlon J. began her ruling by setting out the test to be met in order to establish unjust enrichment. This requires that the claimant establish:

            i.          An enrichment or benefit to the deceased;

            ii.          a corresponding deprivation to the claimant; and

            iii.         the absence of a juristic reason for the enrichment.

Fenlon J. undertook a careful assessment of the evidence with respect to each of these three criteria. She assessed the nature of the friendship and the services provided. She found that there was a benefit to the deceased from the services rendered; and because the claimant was not paid for his services rendered, there was a corresponding deprivation to the claimant.

However, the claimant was not able to succeed on the third criteria. The court cited case law to the effect that at this stage of the analysis, the courts can look at all of the “circumstances of the transaction” in order to determine whether there is any other reason to deny recovery. 

The Court observed that the claimant lived with the deceased and paid less than market rent while he lived there. Rather than a contract for services in exchange for rent, the court found that the claimant provided the services he did with a "donative" intent. In fact, the claimant acknowledged that he did not expect to be compensated for the services he provided to the deceased. Nor did he expect to receive any benefit from the deceased’s estate after his death. One witness described the relationship between the claimant and the deceased as one of "mutual caretaking". The Court noted that the claimant and the deceased gave to each other freely and generously. "In short, this was a case of mutual giving arising out of a close mutual friendship." This mutual giving was a relevant consideration in determining their reasonable expectations and the existence of a juristic reason for the conferral of the benefit in issue. 

In any event, Fenlon J. stated that even if there was no juristic reason for the conferral of the benefit, she would not have the remedy stage award damages to the claimant because of the benefits he received in return from the deceased which equalled or exceeded those he provided to the deceased.

Thank you for reading.

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