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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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The issue of gifting and acceptance was considered recently in Leclair v. Canada, 2011 TCC 323.

There, a father gifted real property to his daughter. He did so, however, at a time when he was indebted to CRA. CRA assessed the daughter as being liable for the father’s unpaid taxes pursuant to s. 160 of the Income Tax Act. S. 160 renders a recipient of a transfer of property liable for the donor’s unpaid taxes if the recipient was a spouse, under 18 or a person with whom the donor was not dealing at arm’s length.

The court found that the daughter did not have knowledge of the transfer. Upon learning of it, and the father’s liability, she retransferred the property back to her father. 

The court considered a number of cases dealing with acceptance of or disclaimer of a gift, and case law to the effect that a failed testamentary gift is not caught by s. 160. It went on to hold that the same rules applied to inter-vivos transfers. A transfer of an inter-vivos gift must be a completed transfer, and not a failed or void transfer, and further, that intent and delivery by one party alone is insufficient to complete a gift. The gift in question was not accepted, and once the daughter had knowledge of it, it was repudiated within an acceptable time. The transfer back by the daughter amounted to a valid disclaimer of the gift, and she was found to not be jointly liable for her father’s tax debt.

Until tomorrow,

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This is according to an article posted on the Toronto Star’s “Health Zone”. The article by Barbara Turnbull entitled “Religious leaders confront myths that stop faithful from donating organs” notes that in the GTA, just 12% of the population has registered as organ donors.  This may be a factor of the GTA’s rich diversity of culture.

The prevailing belief among many religious groups is that preservation of the integrity of the body is required upon death. However, no religion prohibits organ donation, and many religious leaders from various faiths are working to change the prevailing public opinion.

The article quotes Jewish, Muslim and Hindu religious leaders: all of whom support organ donation. However, they note that much work must be done in order to overcome prevailing attitudes. “We have to change it so that it’s not only okay to do it, it’s not okay not to do it”, says Rabbi Reuven Bulka.

The article reports that 1,547 people are awaiting organ transplants in Ontario, and every three days, someone dies while waiting for a transplant. Hopefully, these numbers will change for the better.

Have a great Thanksgiving weekend. And please sign your organ donation card.

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Another speaker was our own Craig Vander Zee. Craig spoke on the topic of administering an estate where there are claims made against the estate, such as claims for equalization under the Family Law Act, dependant support claims under Part V of the Succession Law Reform Act, or trust claims, such as claims involving jointly held assets, or quantum meruit claims.

Such claims necessarily complicate the administration, and give rise to a number of issues and considerations on the part of the Estate Trustee. Craig’s paper addresses a number of these issues, including the nature of the claim, what procedural steps must be taken to defend the claim, representation and notice to all of the interested parties, limitation periods, and the thorny issue of costs.

Thank you for reading, and have a great weekend.

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One of the presenters was Clare Burns. She has prepared an excellent checklist for solicitors advising estate trustees. The checklist covers topics such as the first interview with the client, reviewing wills, codicils and affidavits of execution, preparing and delivering initial report to the client, determining the estate assets and liabilities, applying for the Certificate of Appointment, realizing and distributing the estate, and preparing the final report to the client. Under each heading, there are detailed descriptions of matters to be considered.

Ms. Burns has advised that she hopes to have the checklist available on the LSUC website shortly.

Solicitors are encouraged to download the checklist, and personalize it and expand to it according to their needs and experience.

The benefits of using a good checklist cannot be overstated. They are an essential tool in any practice.

Thank you for reading.

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The author notes that in 1921, the average life expectancy for a Canadian male was 58.8 years, while the mandatory retirement age was usually 65. At that time, financial planning for retirement was not an issue for most.

Good news: life expectancies have gone way up. Bad news: we now need to plan for a (hopefully) much longer retirement. Most Canadians should plan for, conservatively, a 30-year retirement!

Planning for retirement means considering the following basic questions:

-Do I need to think about ways to work beyond age 60-65?

-Am I saving enough for retirement?

-What is my world going to look like in 25 years?

The article contains links to tools such as a detailed “How long will I live” calculator. The calculator is eye-opening and instructive, and worth a visit. Other links include a “How much money will I have at the end” calculator, which estimates the value of your estate, assuming you live to a full life expectancy. Again, eye-opening.

Thanks for reading.

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Cremation Solutions has come up with “a new and exciting way to memorialize your loved one.”

The company offers a number of cremation urns and other mementos. One of their most notable products is the “Personal Cremation Urn”. The company offers to create a custom cremation urn in the image of your loved one, favourite celebrity, hero, or even President Obama.

The urns are made from a tough polymere compound, and come on a solid marble base. The company will create the urn using a photograph or two of the subject. 

Cremation Solutions says that the urns can have hair added digitally for short haired people, or, for longer haired subjects, a wig can be added.

The urns come in two sizes: full size, 11” tall (to hold the ashes of an adult) or keepsake sized, 6” tall, to hold a portion of the cremated ashes. Full size is $2,600 US, and keepsake sized is $600 US. Delivery is free.

Thank you to Gerry Beyer and his blog Wills, Trusts and Estates Prof Blog for the reference.

Have a great week.

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On the use of video, National noted Hull and Hull’s “Media Centre”, where “prospective clients and staff can glean expertise and, in the process, get to know Hull & Hull lawyers.”

On the topic of solo/small firm websites, National said: “Hull & Hull’s website … is bright, interactive, and client friendly,” says [panellist Jordan] Furlong. “Visitors are immediately introduced to the firm’s blogs, videos, newsletters, and other resources. The firm also asks precisely the right question on its from page: ‘Can we help you?’”

We take great pride in our social media presence, and sincerely appreciate the recognition.

Thanks for reading.

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Currently, the Family Medical Leave plan allows employees to take up to eight weeks of unpaid leave to care for terminally ill family members. Under the expanded plan, employees would be entitled to the same eight week unpaid leave in order to care for ill or injured family members.

The plan is in addition to the eight weeks of protected leave afforded to employees with terminally ill family members.

Under the current plan, “family members” receives a broad definition: in addition to immediate family members, the definition includes foster children; siblings-in-law, uncles, aunts, nieces and nephews of the employee or the employee’s spouse; spouses of the employee’s grandchildren, uncles, aunts, nephews or nieces; and persons “who consider the employee to be like a family member”.

The employee must be “providing care” to the person. “Care” includes providing psychological or emotional support, or arranging care by a third party.

It is not clear whether the plan would allow employees protected leave to care for elderly or incapable family members. The press releases define the criteria for eligibility as “a serious injury or illness, including cancer or a stroke”.

At present, there is no corresponding Employment Insurance benefit during such leave (there is for leave for employees with terminally ill family members). The Ontario Government is calling on the federal government to extent Employment Insurance benefits to those taking advantage of the proposed expanded program.

Thanks for reading.

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The program provides assistance for funeral services, burial services or cremation services. With respect to funeral services, the program can pay for the transfer of the body. If there is to be a burial, the program can pay for the purchase of a burial lot, or if the deceased owned a lot, can pay for the opening and closing of the grave. If there is to be a cremation, the program can pay for the cremation, and a standard urn, and the cost of scattering the remains in a cemetery.

Eligibility is based on the financial situation of the deceased and his or her spouse at the time of death. A caseworker will be assigned, who assesses the assets, income, RRSPs and life insurance of the deceased. 

If the deceased person was on Ontario Works, or ODSP, the funeral home can assist in obtaining benefits. (The Province of Ontario can also provides assistance to those on ODSP or Ontario Works.) If the deceased was not on Ontario Works or ODSP, the family or estate trustee should contact the City of Toronto’s Employment and Social Services office. The Employment and Social Services office must be contacted, and must authorize services before a contract is signed with the funeral home or cemetery.

For more information, see the City’s website, here, or call 416.392.1666.

Thanks for reading.

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That group, the article advises, is more acutely aware of the need to save for retirement, and are at a critical time in their lives to assess how financially prepared they are for retirement.

The tips are:

1. Assess whether you are financially ready to retire.

This requires that you assess your assets and needs. The article has links to tools to help with these assessments.

2. Re-Assess your portfolio.

As retirement nears, many move their investments into more conservative vehicles.

3. Pay off high interest debts.

This would likely be good advice for any age group.

The article concludes by suggesting that individuals continue on their path towards having their retirement savings on track, and increase savings where possible. The author notes that saving more than required will help cover unexpected expenses.

From an estate and capacity planning point of view, we see on a daily basis the high cost of health care for the elderly, and the devastating effect that this can have on a retirement plan.

Thanks for reading.

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One of the issues that can arise is the effect that the separation agreement has on the last will and testament of the deceased spouse. While the Succession Law Reform Act provides that a bequest in a will to a former spouse is revoked upon the termination of a marriage by judgment absolute of divorce, that is not the case where there is only a separation.

In Makarchuk v. Makarchuk, 2011 ONSC 4633 (CanLII), the parties separated, and entered into a separation agreement. The separation agreement provided that, subject to any additional gifts made in any will validly made after the date of the agreement, the parties released all rights that they may acquire under the laws of any jurisdiction in the estate of the other.

The husband died, without making a new will, and without revoking a prior will which provided that his entire estate was to pass to his now separated spouse.

The court was asked to interpret and apply the separation agreement so as to exclude any benefit to the surviving spouse. The court refused to do so. The court held, applying Eccleston Estate v. Eccleston, 3 R.F.L. (5^th) 54, that the language of the separation agreement was not broad enough to apply to rights acquired under the will.  The release in the separation agreement applied only to statutory rights. The release did not “trump” the will.

It is important for separating spouses to consider bequests made in prior wills, and consider revising their estate plan.

Thank you for reading.

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In determining the issue, the Court noted the perceived clash between family law and bankruptcy law.

In Schreyer, the parties separated in 1999 and filed for divorce in 2000. The husband was the owner of the family farm. The parties consented to an equalization of their assets. Before the equalization could be judicially considered, the husband filed for bankruptcy. The wife was not listed as a creditor, and the husband was discharged from bankruptcy in 2002. An equalization order was then made in favour of the wife, but the Manitoba Court of Appeal held that the wife’s claim was extinguished by the discharge of the husband’s bankruptcy. The wife appealed to the Supreme Court of Canada.

The Supreme Court of Canada agreed with the Manitoba Court of Appeal, and dismissed the appeal. Manitoba was said to be an “equalization jurisdiction”, and not a “division of property jurisdiction”. (Ontario is also an “equalization jurisdiction”.) The wife did not have any proprietary right in the husband’s property, and was therefore only a creditor of the husband. 

As to the effect of bankruptcy, the wife’s claim was provable in the husband’s bankruptcy. It was neither proprietary, nor was it exempt from the effect of a discharge as a claim for support or maintenance. Upon the discharge of the husband, the husband was released from all claims provable in bankruptcy, including the equalization claim.

As to the fact that the wife was not notified of the husband’s bankruptcy or discharge, the Court noted that she could bring a claim in bankruptcy to remedy this. However, she would only be entitled to seek the dividend she would have otherwise received. In the case before the Court, there was not dividend paid to creditors, and thus, such a claim would prove fruitless.

Under Manitoba’s Judgments Act, the family farm was exempt from execution. The wife, however, could apply to the bankruptcy judge for leave to pursue her claim against the exempt property. Alternatively, the wife could pursue a remedy such as spousal support.

Although the appeal was dismissed, the Court did not award costs to the husband, “in light of the particular circumstances of this case”. The Court appeared to lament the fact that “In its current form, therefore, the [Bankruptcy and Insolvency Act] offers limited remedies to spouses in the appellant’s position”, and stated that “It seems to me that this matter is ripe for legislative attention so as to ensure that the principles of bankruptcy law and family law are compatible rather than being at cross-purposes.” 

Have a great weekend.

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