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

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A question was recently posed to Ken Gallinger, an ethics columnist with the Toronto Star: was one of two brothers who received his father's estate ethically obliged to share his entitlement with his disinherited brother?  The questioner stated that he was shocked that his father chose to make such a distribution when there was no indication that the father intended to treat his sons other than equally in his Will.  The advice of Gallinger was along the lines of: no, you are under no obligation to share the bequest...but... you would probably feel better if you did.

Estate litigation is one of the few areas of law where you could conceivably see the same question posed to an advice columnist as to a lawyer.  Reading the exchange between the questioner and Gallinger gave me pause to consider what my answer would be and, more to the point, to consider that I had yet to be asked that question.   

Lawyers can sometimes present as insensitive, hiding the fact that they have a personal, moral or spiritual viewpoint because it does not fall within the parameters of their retainer agreement with their clients. Paid by their clients to provide legal advice, lawyers are not expected to opine on the moral dilemma presented by an unexpected windfall.  Will challenges are concerned with ascertaining the true intentions of the testator, not with determining whether those intentions were motivated by bitterness or spite.  

In concluding his response to the question posed, Gallinger made the comment: "sometimes it's better to be generous than right." Enough said.

Have a great weekend,

David

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In a recent decision out of Québec, Broodney v. Herzog [2006] Q.J. No. 14933, testamentary intent trumped the literal wording of a Will.

The testator had been involved in a loving relationship with Harry Broodney. They had lived together for twelve years. In a 1995 Will, the testator left Harry $25,000.00. In a 1998 Codicil, the gift was increased to $35,000.00, payable in monthly instalments of $600.00. In 1999, the testator executed a further Codicil, increasing the monthly payments to $1,000.00 but not changing the capital amount of the gift. Both the 1995 Will and the 1998 Codicil stated that the gift to Harry would lapse and be null and void, if he and the testator were “not living together” at the time of the latter’s death.

The issue for the Court of Québec was the meaning of the phrase “not living together”. At the time of the testator’s death, she had been living in a nursing home due to her deteriorating health. Her family consequently claimed that Harry was not entitled to the $35,000.00 gift.

The Court focused on the testator’s intentions. Her intent to benefit Harry was clear and uncontested. The Court held that the testator intended the phrase “not living together” to mean a “break up” with Harry. The evidence was clear that their loving relationship did not end when the testator involuntarily left Harry to reside in the nursing home. The evidence was also clear that the testator’s family was aware of the loving relationship. For the Court, the inability to physically live together could not be a reason for disinheriting Harry.

Not surprisingly, Harry asked for and received punitive damages as a result of the family’s refusal to honour the testator’s last wishes. The Court deemed the family’s refusal to be malicious and reckless.

The litigation could have been avoided by better wording in the Will. Drafting issues aside, the case is a good illustration of a Court employing common sense and testamentary intent to avoid an unjust result.

Have a great day!
Bianca