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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 Listen to: Hull on Estates Episode #311 – Beneficiary Designations When a Will Is Revoked 

This week on Hull on Estates, Paul Trudelle and Holly LeValliant discuss beneficiary designations when a will is revoked. More specifically, they discuss a recent decision made by the Ontario Superior Court of Justice: Petch v. Kuivila, 2012 ONSC 6131 (CanLII).

If you have any questions, please email us at hull.lawyers@gmail.com or leave a comment on our blog.

Click here for more information on Paul Trudelle.

Click here for more information on Holly LeValliant. 

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In Thiemer Estate, a decision of the B.C. Supreme Court, 2012 BCSC 629 (CanLII), the deceased left an estate having a value of $20m. He left a will that provided for various specific legacies. The will also included a clause that directed the payment of “the balance of any money which I may have at the time of my death” to a common-law spouse. The will went on to define “money” as including “the balance of any money which I may have in any savings and current accounts in my name, any savings certificates, shares and bonds but excluding” insurance proceeds and RRSPs.

At the time of his death, the deceased had bank accounts, GICs, a mortgage receivable, and most relevant to the proceeding, shares in private companies having a value of $14m.

At issue in the interpretation application was whether the definition of “money” in the will, which referred to “shares”, meant that the value of the private companies was to be paid to the common-law spouse.

The decision sets out the relevant guiding principles, and case law on the definition of “money”.

The court decided that the reference to “shares” in the definition of “money” was not intended to include the shares in the private corporations. Essentially, the items included in the meaning of “money” were items that were in the form of cash, or which could be readily converted into cash. This might, then, include shares in publicly traded corporations. It was held, however, that the definition did not extend to shares in a private corporation, which by their very nature could not be readily liquidated.

This conclusion was fortified by other terms of the will. For example, the will established a spousal trust. If the spouse’s position on the definition of “money” was accepted, there would be very little left in the spousal trust. Further, the will provided extensive administrative powers to the trustees with respect to the ongoing operation of the companies. The spouse’s interpretation of “money” would render these powers “superfluous”.

The case is very instructive in the interpretation of wills, generally, and the application of those principles of interpretation in a specific context. 

Thank you for reading,

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

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It was Benjamin Franklin who famously stated, "The only thing certain in life are death and taxes".  Beyond these two certainties, surely is another certainty, that is, upon the death of an individual, the remains of their property, however big or small, are to be distributed.  This means that a will plays an integral role upon an individual's passing.  Whether a client is one of modest or limited means, or whether a client is of extravagant or unlimited means, the importance of having a will cannot be understated.  Much of the reasoning supporting an individual taking the time to execute a will applies to all types of clients, wealthy or not.
 

One justification for having a will is to eliminate family fighting over the disposition of assets.  In other words, a will helps to keep the peace.  So long as a client's will clearly demarcates how the assets are to be divided, it has the effect of reducing the amount of hostility felt towards family members who each may believe they are deserving of a bigger piece of the pie.  Whilst it is true that a will cannot guarantee that no litigation will arise, if the will ends up being litigated over, a will and corresponding drafting solicitor notes should offer insight into one of the most important questions asked by the court, "what was the intention of the testator".
 

Not only does a will have the potential to save family members from fighting amongst each other as mentioned above, it also allows a testator to appoint guardians, most notably for minors and those who lack capacity, to ensure that they are adequately looked after.  Although there are provisions in the law to ensure that such individuals are cared for, knowing that there is someone trustworthy appointed to make the necessary decisions, may limit concerns as to how the individual is to be treated in the future.
 

A further justification for having a will is that it empowers the testator to decide who is to receive their property.  This is especially important for a testator who may only have a few cherished possessions and assets.  Failing to draft a will results in an intestacy.  This has the effect of letting the law decide under Part II of the Succession Law Reform Act, RSO 1990, c S.26, who is to be in receipt of the intestate's property.  Following the law of intestacy has the effect of bequests falling rigidly according to the law which may or may not be to the desire of the intestate.
 

Lastly, a carefully drafted will, or wills, have the potential to reduce one's exposure to estate administration tax.  This has the obvious consequence of a greater percentage of the assets flowing to the beneficiaries.  In the Ontario Supreme Court decision of Granovsky Estate v. Ontario, 1998 CanLII 14913 (ON SC) the testator created two wills, a primary will dealing with assets subject to estate administration tax, and a secondary will dealing with assets falling outside estate administrative tax, such as shares of private companies.  It was held that only the primary will needed to be submitted for probate (now referred to as a certificate of appointment of estate trustee with a will).  Testators have since followed this trend and have created separate wills for assets that require estate administration tax to be paid.
 

Ian Hull - Click here for more information on Ian Hull. 

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Wills often deal with personal property by referring to a memorandum that sets out how the personal property is to be distributed. Usually, the memorandum is not executed in accordance with the requirements of the Succession Law Reform Act, or similar legislation. How effective is such a memo?

A memorandum, even if not properly executed, will be “incorporated by reference” and found to part of a valid will if:

a. the memorandum is referred to in a duly executed testamentary instrument;

b. the memorandum is in existence at the time of the execution of the testamentary instrument; and

c. the memorandum is “ascertainable” – that is, there is specific reference to a specific document. The reference to the document must make it identifiable: see Black Estate v. Black, 2006 CarswellOnt 9030, 32 E.T.R. (3d) 282 at para. 19.

Reference in the will to a document that is to be created in the future can be fatal to the application of incorporation by reference. However, reference to a memorandum that does not exist at the time the will was executed, but exists at a time when a codicil confirming the will is executed may result in a valid incorporation by reference: See Re Lady Truro (1866), L.R. 1 P.& D. 201, referred to in Hull, Probate Practice, 4^th ed, p. 83.

Thanks for reading,

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

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A British professional advice website, unbiased.co.uk, has published some intriguing statistical data as part of its ‘Write a Will Week’ campaign, which is ongoing this week..

More than one in four (27%) UK adults hope to leave enough money for their family or pets to live comfortably after they’re gone.

The more specific stats are as follows:

• Enough for family or pets to live comfortably                         27%
• Enough to boost child/grandchild’s savings                            19%
• Enough for child/grandchild to put a deposit on a house         15%
• Enough to fund child/grandchild through university                 11%
• Enough to fund child/grandchild’s wedding                               7%
   

With respect to the composition of their expected estates, "nearly two thirds of UK adults expect to have a property (63%).  Of those, 55% expect the value of the home they leave to be worth £100k or more.  Over half (51%) expect to leave jewellery, antiques and paintings and nearly one in ten (9%) expect to leave a business behind."

David M. Smith - Click here for more information on David Smith. 

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In our modern society more and more people choose to remain in common law relationships rather than to marry. Certainly many think that few differences distinguish a common law relationship from a married one as society has responded to practical reality by making common law spouses eligible for pension benefits, family insurance benefits and spousal support. No wonder some people think it is all the same whether they are married or not. However, what many fail to realize is that it makes a very big difference with respect to property rights - both in life and after death.

A common law spouse of a deceased who has died intestate (without a Will) has no entitlement as a beneficiary of the deceased partner’s estate.   It is not uncommon that a dedicated common law spouse of 20 or 30 years is faced with the prospect of the estate of their loved one, which they helped to build over the years, going to the blood relatives, who are the legal heirs according to legislation; and often being people who never had any social relationship with the deceased whatsoever.  

If a person dies intestate, Part II of the Succession Law Reform Act  governs who is entitled to their estate. In the Act, a spouse is defined as a married spouse only. Here is the order in which family of a deceased is entitled to take:

1.      If there is spouse and no children the spouse takes all.

2.      If there is a spouse and children, the spouse gets the first $200,000.00. 

3.      If there is one child, the residue goes to the spouse and the child equally.

4.      If more than one child, the spouse gets one-third of the residue and the children share the other two-thirds equally.

5.      If there is no spouse, the estate goes to the children equally.

6.      If no children, the estate goes to the deceased’s parents equally.

7.      If no parents, the estate goes to the deceased’s siblings; if a sibling pre-deceased, that sibling’s share goes to the deceased sibling’s children.

8.      If no siblings, the estate goes to the nephews and nieces.

9.      If no nephews and nieces it goes to the next of kin of equal degree of consanguinity - that’s where it gets complicated and complete strangers end up inheriting. 

10.   If no next of kin, the estate escheats to the crown.

Lesson? Make sure you have a Will!  

Sharon Davis - Click here for more information on Sharon Davis. 

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We have blogged and podcasted in the past on the formal requirements of Ontario’s Succession Law Reform Act, and the effect of non-compliance. In Ontario, there is no provision for “substantial compliance”, and a Will not executed in accordance with the strict requirements will not be accepted: see Sills v. Daley, [2002] O.J. No. 5318 (however, see also, Sisson v. Park Street Baptist Church, [1998] O.J. No. 2885).

Other provinces, such as Manitoba, New Brunswick and Nova Scotia, have provisions that give the court discretion to order that a writing is valid and fully effective as a will even though it was not executed in compliance with the relevant legislative requirements.

In Nova Scotia, the legislation provides:

“Where a court of competent jurisdiction is satisfied that a writing embodies

(a) the testamentary intentions of the deceased; or

(b) the intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will,

the court may, notwithstanding that the writing was not executed in compliance with the formal requirements imposed by this Act, order that the writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act.”

The application of this provision was discussed in the recent Nova Scotia decision of Robitaille v. Robitaille Estate, 2011 NSSC 203 (CanLII).

There, the testator met with her lawyer to discuss a change to the appointed executor under her will. The next day, the lawyer spoke to the testator by phone (recognizing her voice) to discuss making a change so as to add a clause imposing a protective trust for the bequest to her daughter similar to the clause that was in place for her son. Before the revised will could be discussed and executed, the testator fell ill and was hospitalized. Another daughter phoned and asked the lawyer to email the will to her so that it could be executed by the testator. 

The testator then signed the will, and died a few days later.

Unfortunately, the will was not signed by the witnesses in the presence of the testator, as required by Nova Scotia’s Wills Act.

What did the court do? Tune in tomorrow.

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

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I recently read an Ontario decision involving a will challenge and the court granted summary judgment to the estate trustee on the issue that the Testator had the requisite testamentary capacity to execute her Last Will and Testament. 

In Quinlan v. Caron, the Deceased executed her Last Will and Testament on May 18, 2007 (the “Will”) and she subsequently died on September 7, 2008. Two days before executing the Will, the Deceased underwent a capacity assessment that was recorded on video. The doctor who conducted the capacity assessment concluded that the Deceased had the requisite capacity to create a new Will.

The daughter of the Deceased commenced a Will Challenge alleging that the Deceased lacked the mental capacity to execute the Will and undue influence. The Estate Trustee is the son of the Deceased and brought a motion for summary judgment against his sister, arguing that there were no genuine issues requiring a trial as his sister’s claim was not supported by any evidence.

The Honourable Justice Tuck put a lot of weight on the capacity assessment and granted summary judgment to the Estate Trustee on the issue of the Deceased’s capacity; however Justice Tuck dismissed the Estate Trustee’s motion for summary judgment on the issue of undue influence. In the decision, Justice Tuck held that “matters of credibility requiring resolution on a case of conflicting evidence ought to go to trial” and he rationalized that there was conflicting evidence in this case, which could suggest that the Deceased was unduly influenced.

Thank you for reading and have a great weekend,

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

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In a recent blog published by Forbes, Mr. Bernard Krooks considers strategies that could be used to prevent a Will challenge.

In his blog, Mr. Krooks states that "Will contests often occur after a heir or family member perceives some inequity or unjustness in the distribution of money or possessions laid out in the will.  This can be the result of a lack of requisite mental capacity to execute the will, another’s undue influence over the testator, fraud, or improper execution of the will."

Mr. Krooks suggests that a Lawyer drafting a Will can send the testator to medical professional to obtain an opinion on the testator's capacity to execute a Will.   This would be strong evidence which could be used to propound the Will, long after the testator has died.

Mr. Krooks also suggests that the drafting Lawyer should consider the use of a videotape at the time the testator is signing the Will.  Mr. Krooks explains that the videotape could be used to show that the testator signed the Will "freely and with the requisite mental capacity to agree." 

The use of a videotape at a will execution,  has significant benefits, but also has numerous problems.  This technique has been the topic of numerous debates between estate and trust professionals.

There are steps that we can take to ensure that the Will is being executed in accordance with the applicable legislation, which could help the estate trustee propound the Will; however there is no legislation in Ontario that would estopp a party who has a financial interest in an estate from challenging the validity of the subject Will.

Thank you for reading,

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

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For my final blog for the week, I want to discuss an article recently featured in Forbes.com, which considers the importance of having a Will. 

If an individual dies without a Will, he is said to have died intestate. When a person dies intestate, their assets are distributed pursuant to the intestate provisions contained in the Succession Law Reform Act.

If a person dies with a Will, he is said to have died testate. In such circumstances, the deceased’s assets are distributed in accordance with his last wishes as set out under his Last Will and Testament.

Under Glenn Curtis’s article, “Why You Should Draft a Will” he sets out the benefits of having a Will, such as:

1.                  Limiting family disputes;

2.                  Wills can outline personal preferences; and

3.                  Wills make quantifying and distributing assets easier.

By comparison, Curtis argues that not having a Will could place significant burdens on loved ones, such as it could take a very long time to compile an accurate list of an individual's assets; it could also take a prolonged period of time to identify and locate potential beneficiaries. “Unfortunately, until this process is complete, money may not be distributed, even to legitimate and known beneficiaries.”

Curtis concludes his article with some wise words: “Individuals seeking to prevent family infighting, and who want to ensure that their spouses, children and other relatives are properly taken care of after they die would be wise to consider drafting a will.”

Thank you for reading, and I hope you have a great weekend,

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

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I recently read an article named “The Lessons of Famously Bad Estate Planning”, authored by Steven Morelli. This article looks at disasters that have followed celebrities because of the absence of a properly planned Will.

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.
 

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As I have been practising in the area of estate litigation for a few years, I occasionally think that I have seen it all; that every recurring story I hear about a family war tends to lose its originality. Not true. Take for instance a recent story that was posted online in the Telegraph, involving a U.S. estate fight.

Tasha Tudor was from New England and has been described as the “unconventional Martha Stewart.” Ms. Tudor died at the age of 92 following complications from a stroke.  The basis of Ms. Tudor’s estate dispute centers on her decision to leave almost her entire estate to her eldest son, virtually cutting out her three other children. 

The oldest son argues that his late mother intended to cut out his three siblings from her estate because they were estranged from her. One of the siblings, a U.S. Air Force lawyer, who claims he was not estranged from his late mother, has asserted that the 2001 Will is invalid on the basis that his older brother unduly influenced his late mother.

The dispute has gotten so acrimonious between the siblings that they could not even agree what to do with their mother's ashes. On motion to the Court, it was ordered that Ms. Tudor’s ashes be divided in half, with one-half to be given to the oldest son and the other half to his siblings. Lawyers are now fighting over who is responsible for a snow plough bill!

It is reported that some of the last words by Ms. Tudor were “Oh, will there ever be a cat and dogfight when I die. But I don't care. I won't be here to see it.” 

It is often difficult to comprehend the harsh realities of litigation until you step into the shoes of one of the parties. I wonder if Ms. Tudor were alive to witness the severity of this dispute whether she would take back those words?

Thank you for reading

Rick Bickhram

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

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The Toronto Star recently reported on Alzheimer’s disease, stating that “cases of the mind-robbing disease will more than double to 1.25 million within 30 years as baby boomers age”. 

With the numbers pointing upward as the population grays, a recent report by the Alzheimer Society, entitled Rising Tide: The Impact of Dementia on Canadian Society suggests the following steps to help reduce the impact of dementia:

1.                  Prevention programs based on healthy diet and physical activity that can delay the onset of dementia by two years, with a potential cost saving of $219 billion over the 30-year period.

2.                  Enhanced skill-building and support programs for family caregivers, many of whom suffer financial hardship because they must leave jobs to look after a relative with dementia.

3.                  Assigning a case manager to each newly diagnosed dementia patient and their caregivers, which could help the person remain at home longer and lessen the strain on the long-term-care system.

Today, annual funding for Alzheimer’s is approximately $24 million. The Toronto Star reports that if “nothing changes, this sharp increase in the number of people living with dementia will mean that by 2038, the total costs associated with dementia will reach $153 billion a year”. 

We have already seen a substantial influx with respect to Will challenges, particularly because there has been a big question mark about the testator’s capacity. The grim realty is that this will be a continuing problem that Estate Solicitors are going to have to tackle.

Thank you for reading.

Rick Bickhram

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

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Bobby Fischer died in 2008 in Iceland at the age of 64. The tawdry details of his life often overshadowed the genius of his game - he was a child prodigy, a teenage grandmaster and -- before age 30 -- a world champion who triumphed in a Cold War showdown with Soviet champion, Boris Spassky. Since his death, there has been a battle over his estate. Two nephews, a long-time companion (and spouse?) and a recent companion have all made claims against the estate. 

This month, it appeared that the long-time companion (and spouse?), Miyoko Watai, had won the battle against Fischer’s nephews, when her claim was certified by Iceland’s highest court, according to the website Chessbase.com. This would make her the sole heir to Fischer’s estate. However, a few days later, Marilyn Young of the Philippines apparently filed a claim in Iceland that her 8-year-old daughter, Jinky, was Fischer’s child. Ms. Young apparently provided photographs of her, Fischer and Jinky together and at least two postcards to Jinky signed “Daddy” that were said to be from Fischer. If Ms. Young’s claim is upheld, her daughter may be entitled to two-thirds of Fischer’s estate under Icelandic law.

Claims to Fischer’s estate will be settled in Iceland because he was a citizen of that country when he died, and he reportedly left no Will. His estate may be substantial. In 1992, he apparently was paid over $3 million for winning a rematch with his old rival, Boris Spassky.

There may be more surprise moves to come in this continuing saga. 

Have a great weekend!

Bianca La Neve

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

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 In a recent Québec decision, the young widow of the late boxing champion, Arturo Gatti, and mother to his son, has been awarded $40,000 to cover her legal fees and child care costs. Ms. Rodrigues had asked for a $150,000 advance and their dog. She had also sought to have an earlier Will in which she did not benefit declared invalid. 

At issue is the validity of two Wills that distribute the late boxer’s estate in very different ways. Ms. Rodrigues has submitted a recent Will signed this past June in Québec, which left the entire estate to her. Mr. Gatti’s family contend instead that a 2007 Will signed in New Jersey is the valid last Will. This Will leaves the bulk of the estate to Mr. Gatti’s mother. The Gatti family claim that the Québec Will was signed under duress. However, a signed original of the 2007 Will has apparently not yet been located by the Gatti family. Accordingly, Ms. Rodrigues sought to have this earlier Will declared invalid, an attempt that was rejected at this preliminary stage by Justice Chaput of the Québec Superior Court. He also ruled that custody of the couple’s dog was not an urgent matter for the time being.

Justice Chaput has urged both sides to come to a settlement to avoid a lengthy and costly court battle that could eat away at the estate, estimated to be $6 million. However, both sides seem prepared to go the distance in their legal fight. Stay turned for a real barnburner.

Thanks for reading,

Bianca La Neve

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

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The formal requirements for execution of a will, or any testamentary instrument in Ontario, are governed by Part I of the Succession Law Reform Act ("SLRA").  The definition of "will" in s. 1 of the SLRA includes a testament, codicil, will, or other testamentary disposition.  The most critical form requirements are that the will must be in writing, signed by the testator and two witnesses.  Other requirements exist, of course.

Many jurisdictions contain dispensation clauses relaxing the formal compliance requirements, if the court is satisfied that a document or any writing on a document embodies the testamentary intentions of a deceased.  For example, s. 23 of Manitoba's Wills Act  or California's Probate Section 6110-6113.  Not so with Ontario, except for holograph wills and for members of the Canadian Forces on active service.  While there is wiggle room in terms of the interpretation of the execution requirements, for instance what constitutes "in writing" or "signed by the testator", if the formal requirements are not met and no specific exemption applies, there is no saving provision based on testator's intention, and therefore no testamentary instrument.

This can have harsh consequences, by invalidating otherwise perfectly good wills on narrow technical grounds.  On the other hand, the SLRA provides time-tested, black-letter legal clarity.  Time tested, because the formal requirements descend from the Wills Act, 1837.

Have a great weekend,

Chris Graham

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

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The Toronto International Film Festival brought stars to town and brought an estate issue into focus. The Art of the Steal  received accolades as a “thrilling whodunit” about the world-renowned Barnes art collection, valued in the “billions and billions.” Dr. Albert Barnes assembled art in the twenties and housed it in the suburb of Merion, Pennsylvania.

On his death in 1951, Dr. Barnes’ will gave control of the collection to the trustees of Lincoln University, the first black university in the United States. However, according to the film’s producer, in the nineties, a scheme was hatched to permanently remove the collection from Merion that some would later call the heist of the century.

The trustees’ decision to move the exhibit to downtown Philadelphia was met with legal challenges that did not succeed.  On a site called The Barnes Letters  it seems interest groups used the courts to deviate from Dr. Barnes’ express wishes to focus on “an educational organization designed to promulgate a unique way of teaching art appreciation.”

At an opening ceremony for the new site, protestors marked the occasion with signs advocating that Barnes’ “…Will Should Be Honoured.”

Art disputes relating to trusts and foundations are not uncommon. Here in Canada, one example involves a long-standing legal dispute between the U.K. Beaverbrook Foundation which claims that it only loaned art to a New Brunswick gallery – art that originally belonged to New Brunswick newspaper baron Max Aitken.  (See Paul Trudelle's September 14, 2009 blog).

These examples point to the idea that a testator’s expressed wishes for certain assets may not always be respected. Dr. Barnes wanted his art to stay put, while it was alleged that Lord Beaverbrook’s art was gifted to the people of New Brunswick.

Have a good Monday.

Jonathan Morse

Jonathan Morse - Click here for more information on Jonathan Morse.

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The recent case of Re Henry (2009) CanLII 12329 (ON S.C.) is an excellent illustration of how a court scrutinizes evidence in a will challenge. 

In Re Henry, the deceased died on May 28, 2005.  Two weeks earlier, on May 12, 2005, he had made a Will designating his second wife as his sole beneficiary.  The deceased's son from a prior marriage challenged the will on the grounds of undue influence, lack of testamentary capacity and lack of knowledge and approval of the contents of the will.   

The trial judge found in favour of the second wife on all issues: due execution was shown, the deceased had testamentary capacity along with full knowledge and approval of the contents of the will.  The challenger's evidence, which consisted largely of his and his sister's testimony, did not bear scrutiny: some of it was inadmissible, testimony appeared reconstructed as opposed to remembered, testimony contained factual inconsistencies, legal submissions contained errors of law and so on.  By contrast, the evidence brought by the second wife was accepted in whole.

No new law is generated in Re Henry, at least not per se.  But there is a concise consideration of the applicable standard of proof which will be helpful for any lawyer making submissions regarding evidence in a will challenge.  Newbould J. points out that the principle in Vout v. Hay, [1995] S.C.R. 6 that evidence of suspicious circumstances must "be scrutinized in accordance with the gravity of the suspicion" may no longer be good law as a result of F.H. v. McDougall, 2008 S.C.C. 53.  F.H. v. McDougall states "[t]here is only one legal rule and that is in all cases, evidence must be scrutinized with care by the trial judge."  So which is it: Vout v. Hay or F.H. v McDougall? 

Having laid out the jurisprudence, Justice Newbould states:

"I need not decide in this case whether the passage from Vout v. Hay that I have referred to is still good law because in my view the evidence is the same regardless of whether the evidence is scrutinized with greater care in accordance with the gravity of the suspicious circumstances.  I have taken care to scrutinize all of the evidence".

Have a great day,

Chris Graham

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In keeping with yesterday’s blog on a British Columbia real estate matter, today I focus on another BC case - Albas v. Gabriel 2009 BCSC 198 - that involves the Indian Act, a federal statute. 

For a quick recap of the interplay between provincial and federal jurisdiction regarding estate matters and First Nations people living on reserves, I refer to David Smith’s 2007 blog: The Administration of Estates under the Indian Act. 

Albas v. Gabriel involved an action by the plaintiff, as executor of the estate, for a declaration proving the deceased's Will in solemn form.  The defendant beneficiaries appealed to the Minister of Northern and Indian Affairs because the Minister has jurisdiction to approve a Will made by an Indian and to confirm the appointment of an executor to administer the estate. Specificially, the Minister’s authority is provided by section 43 of the Indian Act.

A member of an Indian Band and a resident of a reserve, the deceased operated a trailer park and he was a “locatee” of the land because he owned “certificates of possession”: valuable assets that he left equally to his daughter and two step-children. This was just one of the businesses with which the deceased was involved.

The daughter challenged both the validity of the Will and the administration of the estate. The judge determined that the daughter believed that if the Will was declared invalid, she would inherit the entire estate.

Because of the Will challenge, the Minister transferred jurisdiction over the estate to the Supreme Court of British Columbia pursuant to s. 44(1).

Ultimately, the Court found that the Will was valid because it was not forged and the testator had capacity as well as knowledge of the Will which he approved.

Enjoy your day.

Jonathan

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A current Georgia case vividly illustrates the legal, emotional and moral complexity often involved in estates litigation.  According to the reports, Harvey Strother died at age 78, having succumbed to progressively severe alcoholism brought on by the tragic death of his daughter at age 23.  Strother had built up a formidable nest of car dealerships around Georgia, dying with a net worth of about US$37 million.  And a mistress 30 years his junior. 

At issue are 3 amendments to Strother's 1988 will in favour of his mistress.  The will had left the bulk of his estate to his wife, their children and grandchildren.  But one amendment gave his mistress a $7,900 monthly allowance, a second gave her health insurance and an island condo in Florida.   The third - signed about a month before Strother's death - gave her a Cape Cod cottage, a Florida boat slip and a Florida condo to her son.  By that time Strother was drinking 1.5 gallons of wine a day (about 6.8 liters, or 9 bottles of wine).

At trial, the jury upheld the first two amendments, worth about $4.5 million to the mistress.  However, the third one was invalid.  Strother, was allegedly drinking even before he signed it and brought to the lawyer's office by his mistress, and his signature was illegible. 

The family is appealing the two amendments that were upheld, one on the basis that the witnesses were not even present (the mistress is appealing the third amendment struck out by the jury).  Interestingly, the family is represented by Georgia's ex-Governor Roy Barnes, who points out that the requirement for two witnesses "is an elementary part of the law that has been there since the time of Edward II."  FYI, King Edward II, 1284 - 1327: yes, we deal with old law in estates litigation. 

Have a great day,

Chris Graham