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.

On the opposite end of the spectrum, going through a hot summer confined in a cold air-conditioned office is another form of torture in my view. Interestingly, an article in the July 2, 2010 edition of The Lawyers Weekly on room temperature gathered the following data from a survey of 95 US office buildings:

·                    When the air gets too chilly, productivity declines.

·                    Symptoms were found of, among other things, problems with upper and lower respiratory tracts, eyes, and skin as well as headache, fatigue, and difficulty concentrating.  These symptoms were increased by 50% in buildings kept below 23 degrees (often temperatures are set on the assumption that the building is full - research indicates usually 40 to 50% of employees are there).

·                    When people experience temperatures they feel comfortable with (usually warmer than cooler) they do more work and spend more time at their desks.

Some recommendations offered are setting room temperature in common areas to industry standards, placing thermostats in individual offices, and possibly adding a humidifier. 

I hope you all find your own way of beating the heat, and the cold. Have a great weekend!

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

Moreover, Judges seem to be increasingly exercising their discretion to ensure cost awards are subject to the overriding principle of fairness and reasonableness in light of all the circumstances of each particular case, as well as proportionate to the amount at issue. So even if one is successful and has conducted herself appropriately in the litigation, she may still have to absorb a portion of (and possibly all of) her legal costs.

We are also seeing evidence of this trend beyond our borders, notably in a recent Alberta decision, where the Court dismissed a son’s Will challenge in respect of his deceased father’s estate, and similarly dismissed his dependant’s relief claim. 

Notwithstanding his loss, the son sought recovery of his legal costs from the estate. The Court found, however, that he was to personally pay his costs as, (a) the testator did not cause the litigation, (b) the challenge to the testator’s capacity and allegation of undue influence were unreasonable, and (c) the son rejected reasonable offers to settle. Moreover, the son was Ordered to pay “double party-party costs” of his sister, a beneficiary and estate trustee of the estate (as a result of the Rules of Alberta that seem to bear some resemblance to our Rule 49).

I suppose this serves as another reminder to us all to keep this issue top of mind throughout the life of a dispute.

Thanks for reading and have a good day,

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

In yesterday’s blog I noted that while Wills are an opportunity for individuals to provide for their loved ones, there is no guarantee that our stated wishes for our beloved companion animals will be sacrosanct. For example, the late Leona Helmsley’s $12-million trust for her dog Trouble was reduced to $2-million by a Manhattan Judge on the ground that the deceased lacked capacity with regard to her Will and the Trust Agreement.

In the Globe and Mail article that inspired my posts this week, Barry Seltzer noted that Canadian legislatures may wish to consider “ante-mortem” probate as a way to ensure capacity does not become an issue in these cases. Ante-mortem probate is a technique used in certain states, including Arkansas, North Dakota, and Ohio, to validate a will while the person is still alive so that it cannot be contested once the person passes away.

In some cases, the wishes of a testator regarding his pets are contrary to public policy and, thus, are held to be void. For example, some pet owners have included clauses in their wills directing that their pets be euthanized upon their death (perhaps because they feel that their animals will be distraught without them). 

In one such case a testator (Mr. Clive Wishart) directed that the Royal Canadian Mounted Police (“RCMP”) shoot four of his horses. The RCMP refused and the matter was brought to a New Brunswick Court where it was held that the direction to shoot “four healthy animals” was contrary to public policy because doing so would serve “no useful purpose” and “would be a waste of resources and estate assets even if carried out humanely.” 

For those of you interested in reviewing the case, the citation is: Wishart Estate (Re), [1992] N.B.J. No. 547.

Thank you for reading!

Kathryn Pilkington - Click here for more information on Kathryn Pilkington.

Suzana Popovic-Montag, the Chair of the Section for the past year, brought the past year to a close and the election of the OBA, Trusts and Estates Section Executive for the 2010/2011 year, was confirmed. 

The Section also paid tribute to this year’s recipient of the Award for Excellence in Trusts and Estates, Hilary Laidlaw.

The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates. The criteria for the award is demonstrated leadership in the trusts and estates bar through knowledge, experience, skill, commitment, passion and strength of character, plus all or some of the following:

·         academic excellence through teaching at the Bar Admission Course, lecturing at a law school, participating in Continuing Legal Education and/or academic writing;

·         participation in the OBA Trusts and Estates Section Executive or the Law Society of Upper Canada on wills, trusts and estate matters; and

·         contribution to the development of wills, trusts and estate law.

In addition to the Award for Excellence, Lionel Smith was awarded with the Widdifield Award and Sender Tator was presented with the Hoffstein Book Prize.

Congrats to Hilary, Lionel and Sender.

In addition, there was a tribute to The Honourable Mr. Justice Maurice Cullity, who is retiring this year.

It was a wonderful change of venue for the dinner and a very enjoyable evening.

Thanks for reading.

Craig R. Vander Zee - Click here for more information on Craig Vander Zee.

An interesting article in the June 14, 2010 edition of the Law Times notes that Premier McGuinty’s government introduced the legislation in part in response to the murder of nurse Lori Dupont in 2005 in her workplace by her former boyfriend, an anesthesiologist at the hospital. The hospital had reportedly known of the doctor’s escalating harassment of Lori, but did not discipline him – they were supposed to work together the day he fatally stabbed her.

We should all be pleased with the introduction of the Bill, and I hope it has a positive impact on the health and safety in workplaces. Notably, breaches can attract fines of up to $500,000 for companies and up to $25,000 or 12 months imprisonment for individuals. Not something to take lightly.

Despite its importance, employers have apparently been having real difficulty complying with the new legislation by the June 15, 2010 deadline (just six months after the Bill received Royal assent). It seems many employers have not addressed their obligations in time, perhaps because they underestimated the amount of requirements they need to comply with, or possibly because they didn’t realize that a “wait and see” approach would not do as Bill 168 requires positive steps on the part of employers. Such requirements include:

-          conduct a risk assessment for violence and harassment in the workplace;

-          develop policies addressing the risks identified; and

-          complete staff training.

Are you ready?

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

If the litigation stagnates, which can happen from time to time, without reminders in place it is possible for the registered CPL to be left unaddressed. A recent decision in Novia v. Saccoia Estate (Trustee of) illustrates the impact of such a delay. 

The facts of the case are interesting and somewhat complicated, so I am drastically simplifying them here. In short, a dispute arose between a couple over the purchase of a property. A claim was commenced in 1988. A CPL was obtained in 1989. The plaintiff took no further steps in the litigation. The CPL remained on title for a while….oh lets say, until 2010! In 2006 the defendant passed away. In 2010 the estate trustee of the defendant’s estate brought a motion seeking to dismiss the action for delay (how the litigation had not previously been dismissed for delay by the Registrar is a surprise to me). 

The Court reviewed the applicable case law and, based on the evidence before the Court, it found that the delay was inordinate, contumelious and intentional. It also found that the prejudice caused was presumed and actual, as the defendant was no longer able to testify. Accordingly, the action was dismissed and the CPL discharged.

While the facts of this case are uniquely interesting, in my view this case generally serves as a good reminder to all of us to keep an eye on any CPL obtained and properly address its treatment over the life of the litigation.

Have a good day,

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

It was reported that in 2004, a Toronto lawyer was charged by the Law Society of Upper Canada (LSUC) with professional misconduct for conflict of interest while acting as an estate trustee and solicitor without adequate disclosure to the beneficiaries. It was also alleged that he breached his fiduciary duty as trustee by making several imprudent unsecured loans from the estate. It seems that the line between acting as estate trustee versus acting as lawyer for the estate may have been blurred in this case.

In 2008, the lawyer was found guilty, and he received a two-month suspension and a lifetime prohibition from acting for both borrowers and lenders in private mortgage transactions. The lawyer appealed the decision.

The appeal panel, with Larry Banack writing for the majority, granted the appeal. It found that the original proceeding had “compromised the appearance of fairness” and created a “reasonable apprehension of bias”.  This conclusion appears to have been based on the determination that interventions by the original panel during the lawyer’s oral testimony gave the appearance of “descending into the arena and assuming the role of the prosecution”. This is a departure from the proper role of neutral fact-finder.

This seems to be one of the first times, if not the very first time, that the LSUC appeal panel has made a finding of reasonable apprehension of bias. This decision is also noteworthy given that it involves benchers on the appeal panel being called upon to find against fellow benchers comprising the original panel. As noted in this article, this demonstrates that the LSUC can be very fair in its self-regulating function.

Have a good day,

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

Jimi Hendrix died without a Will which started a family war that would end up in court for more than 30 years.

Sonny Bono, an American record producer, singer, actor, and politician, died without a Will. It is mind blowing that someone so successful would not have a carefully planned Will. Of course, numerous people lined up to advance claims against his estate, which included Cher, and the inevitable love child. Sonny could have saved his widow and everyone else involved a lot of grief and aggravation if he had taken the time to do some simple estate planning.

For those of us who have taken the time to prepare our Wills, Mr. Morelli reminds us of the importance of updating our Will. For instance, Anna Nicole Smith died with a Will; however, her Will contained a provision which specifically excluded “future children” from benefiting from her estate. This clause had the effect of leaving her entire estate to her now deceased son, and disinheriting her five month old daughter. A judge eventually fixed this estate mess, but it came at an unnecessary expense.

Mr. Morelli puts it perfectly: “The essence of estate planning: control. Whether it involves celebrities maintaining their image for all posterity, or wealthy land-owners keeping their families’ holdings intact, estate planning protects clients’ control. Quite often people don’t want to discuss estate planning because it involves their death. But clients should understand that it is essential to maintaining their family’s stability and dignity.”

Thank you for reading,

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

Aho v. Kelly, was heard in British Columbia in 1998, but remains a leading Canadian case that is often referred to when the valuation of life estates are being considered.

In Aho v. Kelly the wife and two children of the deceased were each left a 1/3 interest in the matrimonial home of the deceased. The court confirmed that the wife of the Deceased also held a life interest in the same matrimonial home, as per the jurisprudence in British Columbia. The wife commenced an application seeking a court order that the property be sold and the proceeds be unequally divided amongst the three owners of the property.

The wife argued that the proceeds should be unequally divided because she was entitled to further compensation as she had to be paid out for her life interest.

The Court held that a life estate is a property interest that has “some value”. The Honourable Justice Bauman stated that at common law a life estate is alienable, and that upon its transfer to another party it becomes an “estate pur autre vie” (that other life being the original life tenant). The Court concluded that the life interest has a value capable of capitalization, and that this value should be paid out of the proceeds from the sale of the house.

Aho v. Kelly is not binding in Ontario, however it goes a very far way in establishing the framework by which the value of the life interest can be calculated.

Thank you for reading and have a great day,

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

Earlier, Diane Vieira blogged here on the estate of the best-selling author, who died in 2004. Diane noted that Larsson’s common-law spouse of over 30 years received nothing from Larsson’s estate. Larsson died without a valid will, and his estate, estimated presently as having a value of $30 million, passed on an intestacy to his father and brother. Under Sweden’s inheritance laws, the common-law spouse received nothing, and did not have a claim against the estate.

In a lengthy New York Times Magazine article entitled “The Afterlife of Stieg Larsson”, Charles McGrath reports in detail on the life and events subsequent to the death of Larsson.

McGrath notes that Larsson died without a valid Will. (Apparently, Larrson did leave a 1977 will, in which he leaves his estate to the Socialist Party in Umea: the will was not witnessed and is said to have no legal validity.) Although his long-time companion, Eva Gabrielsson, received nothing from his estate, she has become an object of intense sympathy in Sweden.

Gabrielsson also has a laptop containing ¾ of a fourth novel by Larrson, and possibly an outline for others. Larsson’s estate offered to give her their half of Larsson’s apartment in exchange for the computer, but Gabriellson refused. Last November, the estate apparently offered her $2.6 million for the computer, but Gabrielsson didn’t respond.

McGrath states that while Gabrielsson has no claim, she has asserted “a kind of moral entitlement”. In a National Post article, Gabrielsson is said to be claiming that she co-authored the books.

As is usual in these types of matters, great animosity has developed between the spouse and the estate.

Thank you for reading.

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

The court had dismissed the application by the charity for a declaration that it was the successor charity, or that it was entitled to the bequest upon the application of the cy-pres doctrine.

The charity requested solicitor and client costs from the estate. The successful residual beneficiaries suggested that the charity should receive no costs at all, or at best, party and party costs. The residual beneficiaries noted that any award of costs would come from their entitlement under the estate, and thus, in effect, the successful parties would be paying the unsuccessful party’s costs.

The court awarded solicitor and client costs to the charity. The court noted that the “dispute” was created less by the parties, and more by the wording used by the testator, which wording “fuelled” the issues. Although the arguments of the charity failed, they were “justified” arguments, and arguments “based on reason”.

In Ontario, the court has made similar costs rulings in circumstances where it can be said that the parties have acted reasonably in bringing the matter before the court. However, a different outcome might result if the court was of the view that one of the parties acted unreasonably.

Thank you for reading.

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

However, at the time of his death (or at the time of the making of the Will, for that matter), there was no entity known as the “Heritage Society of Bedford”. There was a charity known as the “Bedford Heritage Society”. However, that charity disposed of its assets and surrendered its certificate of incorporation many years earlier.

The Fort Sackville Foundation claimed that it was the successor charity. The court rejected this claim, holding that there was no amalgamation. While the court will take a broad approach to legal successorship in such circumstances, it cannot find a successor where an entity ceased to exist.

The court went on to consider whether the doctrine of cy-pres applied. The doctrine will be applied where:

a.      the gift as it stands is either impossible or impractical to effect; and

b.      the donor expressed a general charitable intent in making the gift.

The court held that neither test had been met. 

As to the first branch of the test, the gift was not impossible or impractical to effect. Because the gift provided for a gift-over, it could readily be given effect.

As to the second branch, the conditions of the gift narrowed the focus of the gift so as to take away a general charitable intent. The purpose of the gift was to preserve the deceased’s property. If that could not be done, the proceeds were to pass to the residual beneficiaries. Thus, it was held that there was no general charitable intent.

As a result, the proceeds of the sale passed to the residual beneficiaries.

See here for the reported decision.

Tomorrow, I will turn to the issue of costs.

Thank you for reading.

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

Queen Victoria was born on May 24, 1819, and died on January 22, 1901. She became Queen at the age of 18, and reigned as monarch for over 63 years, being the longest reigning monarch in history. She had 9 children (she was predeceased by 3 of her children), including her successor to the throne, Edward VII.

Unfortunately, very little information can be found online about Queen Victoria’s Will. However, while searching, I discovered that a legacy of sorts was recently sold at auction in Scotland. Queen Victoria’s stockings (circa 1870) were sold earlier this year for 8,000 pounds (about $12,000 CDN).                                                    

The prior owner, Mary Youings, said that her late mother gained possession of the stockings around 1910. She said that she did not know the circumstances of how her mother gained possession of the stockings. The Telegraph reported that upon Queen Victoria’s death, her undergarments and much of her wardrobe were distributed to members of the royal household.

In July, 2008, Youings sold a pair of Queen Victoria’s 50” waist bloomers for 4,500 pounds.

I hope you enjoyed your Victoria Day Weekend, and got a “leg up” on summer.

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

Police were apparently called when staff at the check-in desk became suspicious about the elderly man in the wheelchair. He was partially hidden behind sunglasses and did not appear to be moving.  While staff were told he was sleeping, it turns out he had been dead for some time.

It was reported that the ladies were likely attempting to evade the complex and costly process of repatriating human remains abroad - bodies being repatriated by air are required to be contained inside hermetically-sealed zinc-lined coffins and kept in the cargo hold for the duration of the journey. It is also necessary for the proper paperwork to be in place.

It is amazing the lengths these ladies went to to avoid abiding by the rules and regulations one has to adhere to before transporting human remains to a foreign country. Truly a bizarre tale!

Have a great weekend,

Natalia R. Angelini - Click here to learn more about Natalia Angelini.

One recent example of this arises out of the Armstrong decision, where after eight months of exchanges with the Toronto Region Estates Office, a non-resident applicant (residing in New Brunswick) had not been granted a Certificate of Appointment of Estate Trustee with a Will. The matter was then sent to a judge for consideration, thereby landing in the lap of Justice Brown. 

After consideration of the facts, including (a) the language of the applicable legislation; (b) that consent of the majority of the persons resident in Ontario had been obtained; and (c) that a bond had been posted in an amount equal to the full value of the estate; His Honour granted the request for a Certificate of Appointment.

While some could view this as a “better late than never” type of situation, as Justice Brown remarks, timely processing of such requests constitutes a critical service provided by the government to the public so they can deal with the assets of a loved one. The goal, therefore, is to achieve a turn-around time of no more than three or four weeks for the issuance of Certificates of Appointment.  

While admittedly this case was not the usual application thereby requiring judicial consideration, it seems we are on our way!

Have a good day,

Natalia Angelini - Click here to learn more about Natalia Angelini.

In Re Estate of Daniel O’Donnell, the date of Mr. O’Donnell’s death was mistakenly listed as May 1, 2009 (not May 2) on the application for a certificate of appointment and resulting certificate. This mistake did not stop the administration of the estate. Mr. O’Donnell’s Will named Mr. Wilson as the sole estate trustee and sole beneficiary, and Mr. Wilson distributed virtually all of the estate assets to himself. He died a short time later, in July 2009. The administration of Mr. O’Donnell’s estate was yet to be completed, but the alternate estate trustee in Mr. O’Donnell’s Will had renounced her right to act. 

Accordingly, the named estate trustee for Mr. Wilson’s estate, Ms. Thomas, applied for a certificate of appointment as succeeding estate trustee with a will for Mr. O’Donnell’s estate. The application materials filed by Mr. Wilson’s estate trustee listed May 2, 2009 as Mr. O’Donnell’s date of death. The original error in the date of death went unnoticed for some time.

When the mistake in the date of Mr. O’Donnell’s death was finally identified, the Toronto Estates Office took the position that the applicant should bring an ex parte motion to correct the error made in the original certificate before the second certificate could be issued. Ms. Thomas argued, among other things, that she should not have to bear the cost of correcting a mistake she had not made and that the cost of preparing such a motion was out of proportion to what was at stake in the succeeding application (the succeeding application was only needed to complete tax filings and distribute the remaining assets valued at only $1,000.00.) 

Justice Brown’s solution was as follows. If the Estates Office identifies a discrepancy in the date of death between the original certificate and the application for a succeeding certificate, it should request an affidavit from the applicant that confirms that a mistake was made on the original certificate and attests to the correct date of death. Upon receiving such an affidavit, the Estates Registrar can then process the application for a succeeding certificate using the corrected date of death, and make any required changes to the original certificate and Ontario’s central registry which records information regarding estates. 

Thanks for reading,

Bianca V. La Neve - Click here to learn more about Bianca La Neve.

This annual event, put on by Toronto and Region Conservation, allows canoeists to paddle down the Don River, from Eglinton to the mouth of Lake Ontario. 

In addition to allowing us to enjoy a day in nature within the city, the event serves as a fundraiser for Don River regeneration projects. 

The river is making a magnificent recovery, and is not the Don River that it was in the 1970’s. It is becoming more like the Don River as it was in the 1870’s. In my neighbourhood, near a tributary near Finch Avenue, trout have been spotted. Beaver are returning to the area, and deer have been seen on many occasions. 

For more information on the Paddle the Don event, visit Paddle the Don. 

Unfortunately, the event is fully booked for this year. However, it still is possible to contribute. To sponsor our team, visit Paddle the Don - 2010 : Volunteer Page

Thank you.

Paul E. Trudelle - Click here to learn more about Paul Trudelle.

As an avid sports fan, I enjoy watching the physical nature of most sports. Recently, our media has reported on the severity of head injuries, which are caused by “head shots”, and the need to implement rules in professional sports to prevent catastrophic head injuries from happening.

Alan Schwarz, an author for the New York Times, recently wrote an article about a loophole in the California workers compensation system that allows retired professional athletes to file a claim for injuries sustained decades before, particularly retired N.F.L. players.  

Schwarz states, “Most states require workers’ compensation claims to be filed within one to five years of the injury; California’s statute of limitations does not begin until the employer formally advises the injured worker of his or her right to workers’ compensation.” Also, California’s workers compensation statutes “require a professional athlete to have played only one game of his or her career within state borders to file a full claim for cumulative injuries.” The logical policy reason behind this legislation is to protect outside workers who temporarily pass through the state, like truckers or flight attendants.

As you can imagine, this loophole has opened the flood gates for retired athletes to file their workers compensation claim. In fact Schwarz states that “about 700 former N.F.L. players are pursuing cases in California, according to state records, with most of them in line to receive routine lump-sum settlements of about $100,000 to $200,000.”

What makes Schwarz’s article interesting is the claim filed by Ralph Wenzel. Wenzel has filed a claim arguing that his dementia at 67 years of age is related to his career as an N.F.L. lineman between the years of 1966 to 1973. The theory of Wenzel’s case is that “hitting your head over and over on the football field causes certain conditions.” In fact, researchers at “at the University of North Carolina have recently linked pro football careers and concussions with heightened rates of depression, mental decline and Alzheimer’s disease.” 

As we continue to see a rise in those who are diagnosed with dementia and Alzheimer’s, I think it will be interesting to see how the sporting industry reacts to this disease, particularly, the rules each professional league implements to eliminate “head shots.”

Thank you for reading.

Rick Bickhram-Click here for more information on Rick Bickhram

There is now renewed controversy involving the late actress’ estate. Fawcett’s estate recently sued the producer who collaborated on a documentary with her, claiming, among other things, that he misused her company's funds. The producer has retaliated, claiming in his responding materials that the estate has withheld money from some of its beneficiaries and that the lawsuit against him is an example of the estate trustee’s misuse of estate funds. 

Surely, Farrah Fawcett did not wish for her estate to be embroiled in controversy but as we who practice estate litigation know all too well, testators can never fully control events surrounding their assets and estate after death.  

Thanks for reading,

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