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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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

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I think that in a year I may retire. I cannot take my money with me when I die and I wish to enjoy it, with my family, while I live. - Harry Houdini, Magician and Escapologist

When I was around 6 or 7 years old, I was unequivocally obsessed with Harry Houdini.  My brother and I used to have contests at the local pool to see which of us could hold our breath the longest. He always won, and I'd end the day a few nickels lighter.

Born Ehrich Weisz on this day in 1874, Harry Houdini emigrated with his family from Budapest to the United States in 1878. As a young man, Houdini’s initial attempts to establish a career in magic were relatively unsuccessful; he even had to double as ‘a Wild Man’ carnival act. Harry met his kindred soul in Beatrice (Bess) Raymond, a teenager trying to succeed in show business as a singer and dancer. They married in 1894. After meeting manager Martin Beck, Houdini found his niche in escape acts: handcuffs, ropes, straitjackets, and chains. His most memorable act was to escape “The Chinese Water Torture Cell” (pictured below). To develop his breath-holding capabilities, Houdini even had an oversized bathtub installed in his house so he could practice regularly.

In the fall of 1926, after having broken his ankle while performing the Chinese Water Torture stunt, and after several sleepless nights caring for Bess after she suffered a bout of food poisoning, Houdini was in his Montreal dressing room chatting with a college student who also happened to be an amateur boxer. The student asked Houdini if it was true that Houdini could withstand any blow to his body above the waist. A weakened Houdini replied yes, and began to rise to his feet, but before he had time to tighten his abdominal muscles, the boxer punched him three times. Houdini suffered a burst appendix, and later, peritonitis. He died on the afternoon of October 31, 1926 at age 52, and was later buried in his bronze ‘buried alive casket’, his head resting on a black sack of letters his mother had written him while alive. No autopsy was performed. In his 23-clause-long will, which had been prepared in 1924 with a codicil added in 1925, Houdini left his collection of over 5,000 books (valued at $30,000) to the Library of Congress. His brother Theo received most of his magic equipment and memorabilia; however, Houdini stipulated that the magic apparatus be ‘burnt and destroyed’ upon Theo’s death. Two assistants received $500 each, while The Society of American Magicians received $1,000. His ‘hat rabbits’ reportedly were given to the children of friends. The balance of Houdini’s estate went to Bess, and it was enough to cover his extensive debts and to allow Bess to live comfortably. Bess also received $50,000 in life insurance money, since Houdini had remarkably purchased a double indemnity life insurance policy in the event of his accidental death.

The Chinese Water Torture Cell secret remains a mystery to this day, and my breath-holding record stands at 1:03.

Jennifer Hartman, guest blogger
 

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A Mareva injunction is a court order that freezes the assets of individuals or companies. It can be obtained without notice to the target individuals and/or companies and can then be extended on notice.

Mareva injunctions are usually employed in civil actions, typically situations involving fraud, where a plaintiff seeks to prevent a defendant from dissipating assets or removing them from the jurisdiction, pending final determination of the plaintiff’s action. 

In Will challenge proceedings, particularly involving large complex estates, a Mareva injunction may be of use in cases where there is a high risk of dissipation or removal of contested assets by one or more parties to the proceedings, thus defeating the purpose of the Will challenge.

A party seeking a Mareva injunction without notice to other affected parties must make out a strong case of dissipation or removal of assets, through sworn evidence. There is also a duty of full and frank disclosure of all material facts and law, given that the affected parties are not able to defend against the injunction at first instance. Finally, the party seeking the injunction must give an undertaking as to damages. That is, the party must undertake to pay damages to the affected parties in the event that it is subsequently determined by a Court that the Mareva injunction should not have been granted. In Ontario, further to Rule 40.02, a Mareva Order obtained without notice is valid for ten days. It can then be extended by a Court, on notice to the affected parties. An affected party, once it receives notice, may immediately move to quash the injunction. 

A Mareva Order may prove a valuable tool in preserving contested estate assets in Will challenge proceedings. 

Have a great day!

Bianca La Neve

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Annuities are often employed when an individual plans his or her estate. We have covered different aspects of annuities on past blogs on Hull on Estates.

A testator, for example, may choose to have one child’s portion of the future estate placed into an annuity that will create a flow of money over time. The child would have access to the cash flow, but not necessarily access to the principal amount. 

In September 2008, Gayle Reid applied to the Superior Court of Justice for an interpretation.  The claimant’s father, Bernard Wiesberg, died and left an annuity to his friend, Avonne Richter (also identified as his common-law spouse). Minimum annual payments of the annuity were directed in the Will to Ms. Richter who received them from 2003 through to 2007. 

The Applicant was to receive the residue of her father’s estate.  A 2005 Order by Dandie  J.  required Ms. Richter to designate Ms. Reid as the beneficiary.  (A provision of the Income Tax Act required the beneficiary to be named, otherwise the retirement income fund would have collapsed, defeating the testator's intent.)

The issue arose when Ms. Richter, who received the previous annual annuity payments in arrears up to 2006, chose to take the $17,015.57 payment in January, in advance for that year. Ms. Richter died on April 17, 2007.

The Applicant sought an interpretation of her father’s Will, specifically regarding the annual payments. As the payments were for the “lifetime” of Ms. Richter, the Estate owed $12,027.44 to the Applicant because the Court reasoned that calculations must be made to the date of Ms. Richter’s death. Therefore a pro-rata calculation was “the only reasonable and fair manner to ensure the two gifts in the Will are honoured.”

If the annuity had been paid in arrears that December, Ms. Richter’s Estate would have been owed a pro-rata amount of the annuity for that year calculated to the date of her death.

Have a good day.

Jonathan

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Amending or altering a formal, attested will can be a difficult task. Such amendments may not be accepted by the Court, despite what may be the clear intentions of the testator.

The recent Ontario decision of CIBC Trust Corp. v. Horn is illustrative of the principles involved. There, the testator executed a formal, typed will. After execution, the testator made substantial handwritten changes to a number of bequests. The changes were not dated or signed. In addition, she added three unnumbered paragraphs to the will.

The court noted that any alteration to a will must be made in accordance with the formal requirements of the Succession Law Reform Act, unless the alteration renders part of the will completely obliterated. Alterations to a formal will must be signed and attested and signed by two witnesses. 

Alternatively, it is possible to make a holograph codicil to a formal will. However, this too requires compliance with the requirements of the Succession Law Reform Act. For a holograph will or codicil, it must be signed “at, after, following, under or beside or opposite the end of the will”. In this case, the handwritten changes were not signed at all.

In conclusion, the court found that none of the additions or deletions could be given effect, and the Estate Trustee was directed to administer the estate in accordance with the typewritten will, and without considering any of the handwritten changes or additions.

Practitioners may want to advise clients of the requirements for amending or altering provisions in a will. Otherwise, a testator’s intentions may not be truly reflected in the will document that he or she leaves.

Thank you for reading.

Paul Trudelle