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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In the recent case of McDougall Estate, 2011 ONSC 4189 (CanLII) the deceased passed away leaving a handwritten will and codicil that together constituted a valid holograph will. The deceased had one surviving relative, his 83-year-old sister who lived in Florida.  

The will did not name an estate trustee and so the deceased’s close friend applied for and obtained a Certificate of Appointment of Estate Trustee with a Will. 

The will left the deceased’s estate to his sister, with a gift-over to “Eye Care research in Glaucoma and Catarach (sic) research”. The codicil said “this shall be expanded after all expenses and encumberances including burial, and the portion to [illegible – the Court determined it was either “expand” or “eye and”] glaucoma … At my death the remainder of my possession shall be bequathed (sic) to my sister Pearl McDougall, now residing in Florida.”

The estate trustee flew to Jamaica at a cost of $859 to deliver a cheque for $9,000 to a clinic for which the deceased had a passion. She delivered the donation herself because she wanted to make sure the charity was legitimate. 

In interpreting a will, the court commented that its function was to determine the true intentions of the testator in light of all the surrounding circumstances. On a reading of the will as a whole, the testator intended to make a charitable gift for eye and glaucoma research and that the bequest to charity was to be paid before the residue would fall to his sister.  This interpretation gave effect to the evidence concerning the deceased’s intentions including his history of making charitable gifts and his desire to benefit eye research because of his own cataract surgery.

However, the charitable bequest failed because no specific amount or share was stated by the testator.

The McDougall decision also dealt with the passing of accounts and contained some instructive discussion regarding trustee compensation, which I will cover in tomorrow’s blog, so stay tuned!

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

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When applying for a Certificate of Appointment of Estate Trustee with a Will, the applicant must be certain that the Will annexed is the Last Will and Testament of the Deceased. Ideally, the testator will have discussed the location of their Last Will with a trusted family member, friend or professional and it will be easily located at the appropriate time. 

If this is not the case, there are a number of places to begin your search for a Last Will, as discussed by Sean Lawler in his article “Wills Kept by the Law Society of Upper Canada” in the most recent issue of Deadbeat, a publication of the Trusts and Estates Law Section of the Ontario Bar Association.

Some of the places Wills are often kept include the following:

1. The drafting lawyer's Wills vault.
2. Among the Deceased's possessions.
3. In a safety deposit box.
4. With the Executor.
5. With an attorney for property or for personal care.
6. On file with the Superior Court of Justice pursuant to Section 2 of the Estates Act, which establishes a Wills depository administered by local Court offices.

If you are unsuccessful locating a Will as above, you can place an ad with the Ontario Reports or other publication to determine if another lawyer who acted for the Deceased, or any other person, is in possession of a Last Will.

One other place to look is the Law Society of Upper Canada (“LSUC”). The files of many lawyers who die, retire, or are disbarred are transferred to LSUC’s Trustee Services Department. Most files are now stored electronically.

LSUC keeps over 45,000 Wills, a number that increases by approximately 3,000 per year. The Wills register can be searched by the name of the lawyer or by the name of the Testator.

The key takeaway here is that estate planning should not be a secret. Discuss your Will with your family (contents and location) and make it easy on loved ones when the time comes to probate your Will.

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

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It is no secret that the legal profession has a challenge convincing the general public that every adult should make a Will.  It is estimated that only 21 percent of Canadian adults under the age of 35 have a Will.  

But once a Will is made, it may also be a challenge to ensure that wills (and estate plans generally) remain up to date.  Lawyers commonly will advise their clients to review their estate plan at least every five years unless there has been an intervening event (such as a birth, death, divorce, sale of an asset, or change in the law) that may impact the terms of a Will. Often, however, the impact of such an event on one's estate plan is given little immediate thought, particularly if the testator is relatively young.

As a cautionary tale, consider the tragic death of Mark Madoff, (son of disgraced financier Bernie Madoff) who committed suicide on December 11, 2010.  Mark Madoff, 46, did not amend his will  after his father’s downfall. Mark Madoff named his father as co-executor of his estate, but because Bernie Madoff cannot serve as executor, the sole remaining executor is Andrew Madoff, Mark Madoff’s brother.  Not only did Mark Madoff not change his executor; a trust created for his children was never amended to include his 2-year-old son, Nicholas, born after the Will was made. 

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

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Each year the Ontario Bar Association (OBA), Trusts and Estates Section, considers candidates for its Award of Excellence. Last year, the Section paid tribute to Hilary Laidlaw as the recipient.  The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates.

Any Trusts and Estates Section member of the OBA in good standing, as well as former members of the section who have retired or been appointed to the bench, but not including current officers of the Executive of the Trusts and Estates Section or the Executive of the OBA, are eligible to be nominated.

The criteria for the award is demonstrated leadership in the trusts and estates bar through knowledge, experience, skill, commitment, passion and strength of character, plus all or some of the following:

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

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

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

Any member of the Trusts and Estates Section of the OBA in good standing is eligible to nominate a candidate by submission in writing, together with a curriculum vitae outlining the nominee's qualifications. The nominator must indicate that the candidate has been advised of the nomination prior to the nomination deadline and has consented thereto. The Award is typically presented at the Section’s Annual Awards dinner in late Spring.  

This is a reminder that nominations must be filed by 5:00 p.m. on Friday, January 14, 2011 to:

Blossom Pangowish, Sections Coordinator

Ontario Bar Association,

20 Toronto Street,

Suite 300,

Toronto, Ontario

M5C 2B8

Fax: 416-869-1390

For more information, and/or to obtain a Nomination Form, please contact Blossom Pangowish at (416) 869-0513, ext 399, or email at blossom@oba.org or by visiting on line at http://www.oba.org/en/admin/awards_en/tru_award.aspx.

Health and happiness in 2011.

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

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Today’s blog looks at the case of Videchak v. Giarratano, 2009 CanLII 29914 (Ont. S.C.), which deals with, amongst other things, the common situation of an adult child holding assets jointly with a parent. Pecore v. Pecore, [2007] 1 S.C.R. 795 (S.C.C.) would tell us that in such situations, after the death of the parent, it is up to an adult child, who is not a dependant, to rebut the presumption that a resulting trust arises such that the asset, received for no consideration, is held for the benefit of the estate (that is, where the transfer into joint ownership is made for no consideration, the onus is placed on the adult child to demonstrate that a gift was intended).

In this case, the Ontario Superior Court held that the presumption applied to a joint bank account held by the Deceased together with one of her children, Anna. While Anna and two of her siblings, Joe and Nina, gave evidence that they were all aware that the joint account was to go to Anna on their mother’s death, there were no bank or other documents and no independent persons to provide evidence upon which a court could make a finding that the presumption of resulting trust was rebutted.  The Judge found that it is well known that elderly people have a joint bank account in order to make sure that debts are paid on time, and to ease the pain of probate. The account was found to be an asset of the estate.

However, in this case the Court came to the opposite conclusion with respect to a GIC jointly held by the Deceased with Joe and Nina. According to the Judge, the GIC clearly stated the three names on it and was different than the bank account “because it is basically a savings item and not to be used to pay ongoing debts.” The Judge held that the GIC document spoke for itself and the two owners of it at the death of the Deceased were Nina and Joe. One might argue that this case seems to exempt jointly held GIC’s from the application of Pecore.

Thanks for reading,

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

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The formalities in the Succession Law Reform Act are strict and unforgiving.  Case law suggests that Ontario courts have no discretion to depart from compliance with the SLRA’s requirements in determining the due execution and formal validity of a Will and its provisions.   

Handwritten alterations made subsequent to the formal execution of a Will are valid in only two situations:

1. If the alterations are signed by testator in the presence of two subscribing witnesses who also sign near the changes or sign at the end of a memorandum elsewhere in the Will that refers to the changes (s. 18(2) SLRA); OR

2. If the alterations constitute a valid Holograph Will or Codicil i.e. they must be wholly in the testator’s handwriting and must be signed by the Testator (s. 6 SLRA).

In order to be a valid Holograph Codicil the markings on the Will must:

• Be capable of standing on their own without reference to the printed text around them; AND
• Indicate a firm testamentary intent.

Any changes that completely obliterate portions of the Will, such that the provisions cannot be discerned from an inspection on the face of the document without resort to artificial means or extrinsic evidence, will be effective to remove said portions from the Will. 
 

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

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I have previously posted on the doctrine of “mutual wills”. See my Breakfast Seminar, here, and my blog of September 24, 2008, here.

The issue of mutual wills was front and centre in the July 26, 2010 decision of Re Hand Estate, 2010 NSSC 297 (CanLII).

There, Dr. Hand and Ms. Hand prepared wills in 1999. In his will, Dr. Hand conveyed a condominium to his son Richard if Ms. Hand was to predecease him (the condo was jointly owned with Ms. Hand). In Ms. Hand’s will, she provides that the condo is to go to Richard. Because of the joint ownership, this gift would fail if Ms. Hand was to predecease Dr. Hand, as the condo would pass to Dr. Hand by right of survivorship.

Ms. Hand predeceased Dr. Hand. The condo passed to Dr. Hand. Dr. Hand then revised his will, leaving most of his property to a daughter. He also transferred the condo into a trust.

Richard cried foul, arguing that the wills were mutual wills and therefore were subject to an agreement against revocation. Accordingly, he argued that he was entitled to a half interest in the condo.

The court disagreed. The court found that the wills were not “mutual”, and further, there was no agreement against revocation.

As to the first point, the court found that the different terms of the two wills meant that they could not meet the definition of “mutual wills”, which required that the wills contain reciprocal provisions.

Further, the different terms of the will suggested that there was no such agreement, and that the “flexible norm of revocability” applied. 

This conclusion was supported by evidence from the drafting solicitor, who advised Dr. Hand and Ms. Hand that upon the death of the first of them, the condo would pass to the other as the sole owner. This, the court held, raised the issue of freedom of the sole owner to do as he wishes with his property.

Subsequent events did not assist Richard. The fact that for a number of years after Ms. Hand’s death, Dr. Hand continued to provide that the condo would pass to Richard suggested, at most, that the intention remained. It did not provide evidence of a mutual agreement against revocation.

While the court is free to find an implied agreement not to revoke a will, the court will not do so except in the clearest of cases. If parties intend to create mutual wills, with the accompanying agreement not to subsequently revoke the wills, they should do so in the clearest of express terms.

Thank you for reading.

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

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The Courts in England and Wales are gradually adapting to relatively new substitute decisions legislation (somewhat analogous to, but in many ways different from Ontario's Substitute Decisions Act).

In particular, the concept of "statutory wills" provides for a mechanism (in certain circumstances) where testamentary dispositions may be directed by a special court for incapable persons. Under the Mental Capacity Act 2005, which came into force in England and Wales in 2007, the Court of Protection must decide what would be in the person’s “best interests”. And some judges have decided that this includes how they would want to be remembered by their family:  “For many people it is in their best interests that they be remembered with affection by their family and as having done ‘the right thing’ by their will.”

As recently reported on-line in the Telegraph, this somewhat controversial application of the concept of "best interests" may inadvertently give rise to opportunistic relatives benefiting from an estate in which the now incapable testator would never have wanted such person to share.

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

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For those who take an interest in music or pop culture, it would have been difficult, if not impossible, not to be aware of Michael Jackson’s demise on June 25, 2009. 

At the time of his death, there were reports that his estate was indebted and/or had pending liabilities in the hundreds of millions of dollars. It is interesting to note that his “empire” is now said to have earned an amount approaching $1 billion since his date of death. Whether these reports are true will have I suppose to be seen. However, if they are true, these astronomical revenue figures would apparently elevate Michael Jackson’s estate to within the top five top earning dead celebrities. 

With such alleged earnings, it is not surprising that the dispute apparently continues regarding his estate and the appointment of the trustees to his estate (apparently litigation continues as between the family and those appointed as executors (administrators) of his estate). Other disputes regarding issues over copyright belonging to Michael Jackson and his estate and his assets and his death would seem not to have an end in the near future. What does appear not to be in dispute though is that his estate will continue to generate incredible revenues.

Thanks for reading,

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

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In yesterday’s blog, I mentioned that the election of the Ontario Bar Association (OBA), Trusts and Estates Section Executive for the year 2010-2011 was confirmed at the Section’s year end dinner on June 1, 2010. 

I am very pleased to be the incoming Chair of the Executive. The Vice-Chair will be Ed Esposto. The balance of the slate is as follows:

Past-Chair:                                          Suzana Popovic-Montag

Secretary:                                             Melanie Yach

Newletter Editors:                               Dina Stigas/John O’Sullivan

Continuing Legal Education

Liaison:                                                Joanna Ringrose/Eric Hoffstein

Regional Programming:                   Ed Upenieks/Mitchell Leitman

Members-at-Large:                           Ann Elise Alexander, Vincent De Angelis, Shael Eisen,                  Danielle Joel, Sean Lawler, Mitchell Leitman, Jane Martin, Deborah Petch, Wendela Roberts, Susannah Roth, Susan Stamm, Ameena Sultan, Sender Tator, Diane Vieira and Laura West.

I am looking forward to working with the Executive and having a very successful year.

Before turning the page on this past year, though, I would like to sincerely thank Suzana Popovic-Montag for all of her efforts, hard work and counsel as the Chair of the Executive.

Have a nice day.

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

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Certainly a firm's wills bank has traditionally been seen as a capital asset that generates work in the manner of files being opened both as estate solicitor and, oftentimes, executor. A recent e-bulletin released by Title Research elaborates on this basic premise to provide some interesting thoughts on the untapped marketing potential of an existing estates and trust practice.  

The author, Alistair Moyes (a consultant with U.K.-based Marketlaw), notes that "the value of the potential clients generated by a probate matter is increasing as the competition in the legal services market accelerates.... The question is how to retain them as clients and gain their next matter."  Because "people tend to go back to the last lawyers they used or had contact with" and because "probate (& wills) is third behind residential conveyancing and divorce (& family) it should be seen as a valuable access point to the profession and one that needs to be carefully managed to retain and gain clients within a firm." 

Essentially, an estates and trusts practice should look to its existing clients as being the source of future work after the Will or Power of Attorney has been drawn.  The key, therefore is to enhance the loyalty of the client to the lawyer.  The starting point is to "maintain a current, regularly maintained database of past clients that can be used to send them information about the benefits of your services."  Thereafter, regular (even as little as every 3 or 5 years) communication with these clients to remind them to update their will if required is a simple way to remain top of mind and show an interest in maintaining an ongoing relationship.

In addition, Moyes notes that any new legal developments can provide an opportunity to remind clients of the benefits of your services. "Writing to executors with brief details of their responsibilities can identify potential new clients." And suggesting your firm as an executor, when explained carefully to the client, similarly provides the potential for new work.

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

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Today is the anniversary of the birth and the death of William Shakespeare, revered poet and renown playwright of Stratford-on-Avon, England. (1564-1616)

Francis Collins was the lawyer who drew Shakespeare's Last Will and Testament. Though almost 400 years ago, and spelling aside, estate planning considerations were much the same, with family politics playing a great part in the drawing of the Will. 

Apparently, Shakespeare called on his lawyer to amend his Will, which was signed on March 25, 1616, due to his ill health and the marriage of his youngest daughter, Judith, to a man of less than reputable character. He left most of his estate to his eldest daughter, Susanna, who was fortunate enough to marry a well-respected doctor about town. Shakespeare and his wife, Anne Hathaway, had one more child, a son (Judith’s twin), who died at age 11. Anne got the “second best bed” and some furniture.

While not mentioned in the Will, rumour has it the famous Bard had an illegitimate son, Sir William Davenant, who appeared to have inherited the most valuable asset of all, Shakespeare’s talent. Davenant was an extremely successful playwright, theatre manager and poet in his own right.

Click here for the family history of Shakespeare’s children and Sir William Davenant. 

If all this talk about Shakespeare and lawyers has put you in the mood for some entertainment, check out “The Lawyers’ Show” rendition of Shakespeare’s A Midsummer Night’s Dream performed by 28 lawyers on June 11 & 12, 2010 at the Berkeley Street Theatre (a Nightwood Theatre production). 

And that concludes my blogging for the week. “Parting is such sweet sorrow”. Have a great weekend!

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

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In Quebec, while formal and holograph wills are recognized, there is also a third kind of will called a notarial will, which involves more formalities than the other two. 

A notarial will is a will drawn by a notary, who ensures the formalities in articles 716 and 717 of the Civil Code of Quebec are observed. It is generally made before the notary in the presence of one witness, though in special circumstances two witnesses are required; for example, if the testator is blind or cannot sign for him or herself. The will must indicate the date and place it was made.  Once the will has been read by the notary in the presence of the testator and the witness, all sign the will in each other’s presence.

The original will is kept by the notary, and the Chambre des notaries maintains a register of all notarial wills. In Quebec, notarial wills do not require probate and are more difficult to contest in court.

Under section 15 of the Estates Act, R.S.O. 1990 c. E.21. A notarial will made in Quebec may be admitted to probate in Ontario without production of the original will upon filing a notarial copy with the other proper proofs to lead grant.

To Apply for a Certificate of Appointment of Estate Trustee with a Will for a notarial will, you must file an Affidavit of Execution by the notary, which is not a requirement in Quebec.  If the notary cannot be found, the Estate Trustee should file an affidavit explaining why together with an affidavit from any other person present when the will was executed, even though that person did not sign the will as a witness.

If neither the notary nor any witnesses can be found, the Estate Trustee must file an affidavit indicating attempts to locate them together with an affidavit by a person (not a beneficiary) who can attest to the signature of the deceased. 

If no witnesses can be located, the Estate Trustee can file an affidavit and draft order in support of a motion to dispense with the affidavit of execution.

If you would like more information on wills in Quebec, see this Government of Quebec website.

Thanks for reading!

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

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The Arkansas blogosphere is abuzz over the colourful facts of Heirs of F.D. Goza, Jr., et al. v. Estate of William E. Potts, Deceased, a decision of the Arkansas Court of Appeals.  Relatives of the testator tried to propound a photocopy of his Last Will, arguing that he lacked testamentary capacity and was under insane delusions when he destroyed the original.  The Appelate Court affirmed the decision of the trial judge that the deceased validly revoked his Will and died intestate. 

The evidence of revocation was overwhelming: The testator wrote such phrases as “void”, "bastards" and "get nothing" over each paragraph, applied Liquid Paper over the names of the beneficiaries, and later shredded the document in front of his insurance agent.  The Court held that ”the evidence clearly showed that [the testator] was an irascible, angry, suspicious, controlling, profane, and difficult man for most of his adult life; however, we cannot say that the trial court erred in refusing to find that he labored under insane delusions.”

The remarkable aspect of this case is the fact that there was a credible and disinterested witness to the shredding of the original Will.  This fact certainly bolsters the presumption of destruction that exists in Ontario when the original Will can not be located on the death of a testator. 

David M. Smith

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

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A “Living Will” or “Advance Directive” is a document that indicates the grantor’s preferences with respect to health conditions and treatment, including the level of medical intervention. It is a guide for the person who must communicate with physicians and make health care decisions in the event the patient is not able to do so him or herself. It is different from a Power of Attorney for Personal Care, which is a document naming a specific person to act on your behalf.

An Advance Directive can be very detailed and tailored to the individual’s personal circumstances. For example, on the University of Toronto Centre for Bioethics website you can find information on a Cancer Specific Advance Directive. 

Given the complex medical nature, it may well be that the specifics of such a directive lay more comfortably in the bailiwick of the health care professional rather than the legal professional.  Ideally, the Power of Attorney for Personal Care should include a detailed health care directive. This approach offers the assurance that the grantor’s wishes are taken into account without the wording in the Advance Directive inadvertently voiding his or her Power of Attorney for Personal Care.

A Power of Attorney for Personal Care may also include conditions or restrictions other than Advance Directives such as limiting the attorney's ability to act until a confirmation of incapacity has been obtained, and determining the method of assessing capacity.

If a person becomes incapable of making personal care decisions and has no Guardian of the Person or Power of Attorney conferring the authority to make health care decisions, the Health Care Consent Act of Ontario provides a statutory hierarchy of persons who can provide consent on the incapable person's behalf in descending order of authority as follows:

1. Spouse or partner
2. Child or parent
3. Brother or sister
4. Any other relative

Therefore, it is especially important to prepare a Power of Attorney for Personal Care if you would not want your spouse, child or parent to make health care decisions on your behalf should you become unable to make them yourself.

For further information on this topic, see Q & A on Powers of Attorney and Living Wills by the Office of the Public Guardian and Trustee for Ontario, or this book about Living Wills by M. Dianne Godkin.

Thanks for reading.

Sharon Davis

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

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Yesterday, I introduced the matter of Estate of William Lipson (Pattillo, J., December 1, 2009, not yet reported).

There, multiple wills were executed. Unfortunately, the second will purported to revoke the first. In addition, both wills purported to deal with all assets, except for shares in a private corporation.

One of the issues addressed was whether the Court could rectify the wills by adding or deleting words. The Court reviewed numerous cases, and concluded that words could be added or deleted from a will to correct an error. Before doing so, the Court must be satisfied that:

i.                    Upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;

ii.                  The mistake does not accurately or completely express the testator's intentions as determined from the will as a whole;

iii.                The testator's intentions must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and

iv.                The proposed correction of the mistake, by the deletion of words, the addition of words or both must give effect to the testator's intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances.

The Court rectified the will by deleting the revocation clause of the second will (so that the first will was not therefore revoked), and by altering the disposition clause of the second will so that it only dealt with shares that the deceased owned in a private corporation.

These alterations, the Court concluded, best gave effect to the intentions of the testator.

Thank you for reading.

Paul Trudelle

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

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The recent decision in Estate of William Lipson (Pattillo, J., December 1, 2009, not yet reported) illustrates an important issue that can arise where multiple wills are executed.

Multiple wills can serve as a valuable estate planning tool for the purposes of saving Estate Administration Tax (probate fees). Simply put, one will deals with assets that require probate in order to be administered. The other will deals with assets that do not require probate: usually shares in a privately held corporation. Probate is only required for the one will, and probate fees are only payable with respect to those assets. As probate is not required for the other will, no probate fees are payable with respect to those assets where probate is not required.

The wills are usually executed at the same time. However, great care must be exercised so that the signing of the second will does not revoke the first.

This was precisely the problem in the matter of Estate of William Lipson. There, draft wills were prepared. Unfortunately, the clause that revokes all prior wills was not properly crafted, and each contained a clause that revoked all prior wills. Therefore, the execution of the second will revoked the first. The possible effect of this was that there was a partial intestacy with respect to all assets dealt with by the first will. The draft wills were executed by the testator prior to a final review.

(There was also a problem with how the two wills identified the assets: both wills purported to deal with all assets other than shares in a private corporation. Therefore there was a potential intestacy with respect to the shares.)

One lesson that can be taken from this decision is that when executing multiple wills, extreme caution must be taken in reviewing the wills and monitoring their execution so that one will does not inadvertently revoke the prior will.

More on this decision tomorrow.

Thanks for reading.

Paul Trudelle

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

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In a Probater article, my colleague, David M. Smith, mused on “in contemplation of marriage” clauses in Wills legislation, which preserve Wills in the face of marriages. As noted by David, to avoid revocation by an impending marriage, a testator usually must include a clear and unambiguous declaration in his/her Will that it is made in contemplation of marriage. The language used must clearly evidence the testator’s contemplation of marriage to a particular person (who is undoubtedly a beneficiary under the Will).

A recent decision out of British Columbia dealt with whether or not a marriage had the effect of revoking a Will where the existence or intent of a “contemplation declaration” was ambiguous. In MacLean Estate v. Christiansen, the testator and Ms. Christiansen began dating in April 2003, and living together in August 2003. In 2005, the testator finally divorced his former spouse, with whom he had had four children. In 2006, Ms. Christiansen and the testator announced their engagement to family. The testator then executed a Will and power of attorney in favour of Ms. Christiansen in June 2007. In August 2007, the couple married but the testator died shortly thereafter. 

The June 2007 Will provided that for Ms. Christiansen by way of a spousal trust. One of the clauses in the Will stated, in part: “to deliver to my spouse, Karen” (i.e. Ms. Christiansen). The issue became whether this clause could be construed to be a declaration that the Will was made in contemplation of the testator’s marriage to Ms. Christiansen. 

The court ultimately held that the June 2007 Will had been revoked by the subsequent marriage. The court held that the reference to “my spouse” was not a declaration that the Will was made in contemplation of the marriage to Ms. Christiansen. It was a reference to their common-law relationship; Ms. Christiansen was the testator’s common-law spouse at the time of execution of the Will. As held by the Court, “the Will could not survive the conversion of a marriage-like relationship, which is accorded all of the rights and obligations attached to a legal marriage, to one of legal marriage”.

Interestingly, it was the named executor who applied for the determination as to whether the June 2007 Will was revoked by the subsequent marriage. The children of the first marriage on the one hand, and Ms. Christiansen on the other hand, each advised the Court that they did not wish to assert that the Will be submitted for probate. The situation was likely non-adversarial due to the fact that whether the estate devolved by Will or an intestacy, all of the children and Ms. Christiansen would benefit (to varying degrees). It should be noted that the new Wills, Estates and Succession Act will abolish the “contemplation of marriage” provision in British Columbia.

Thanks for reading,

Bianca La Neve

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

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The Chicago Tribune provides an interesting commentary on a recent decision of the Illinois Supreme Court, which ruled that a Jewish couple could legally disinherit any grandchildren who married outside their faith, as long as the method of doing so did not encourage divorce. 

The facts giving rise to the case are that the husband discovered that his grandson was taking a gentile to the junior prom.  The husband wrote his strong feelings about religious loyalty into his Will.  Specifically, his Will indicated that upon his wife’s death their grandchildren would become lifetime beneficiaries of certain trusts. However, if any of them married outside the faith and their non-Jewish spouse did not convert to Judaism within a year, they would not receive their share of the trusts.

The husband predeceased the wife. The wife came up with a slightly different approach in her Will.  She bequeathed $250,000 to the one grandchild who had married within the faith. Those who did not do so received nothing.  

One of the disinherited grandchildren argued that the clause violated public policy by offering money to practice a particular religion.  The court disagreed, pointing out that the wife did not set up a system that encouraged heirs to divorce and remarry to claim an inheritance.  Rather, she made a bequest to reward those grandchildren whose lives embraced the values she and her husband cherished.

Thanks for reading,                                                                                                       

Natalia

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

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The Ontario Ministry of the Attorney General Website posts answers to frequently asked questions about estates matters like how to find a copy of a deceased person’s will and how to calculate the amount of estate administration tax. 

There is a public database on site at the Toronto Estates Office at 330 University Avenue that contains information on wills deposited with the court for safekeeping or provided through an application for a Certificate of Appointment of Estate Trustee with a Will. 

Wills deposited with all Ontario Courts from 1996 forward can be searched through the Toronto office. Wills deposited in Toronto can be searched back 40 years. You must contact the individual court offices in other jurisdictions for wills pre-dating 1996.

You can search the name of the deceased and the date of death in order to obtain the file number and review the original will. Searching is free. If the file is located there is a $10.00 fee to retrieve it, $61 if it is in storage, and $1.00 per page for photocopies of the will.

As for estate administration tax, the formula for calculation is set out in s. 2(6) of the Estate Administration Tax Act, as follows:

·         $5 for each $1,000, or part thereof, of the first $50,000 of the value of the estate, and

·         $15 for each $1,000, or part thereof, of the value of the estate exceeding $50,000.

Or, perhaps you might want to consider a Joint Last to Die Insurance Policy, insurance designed for couples with the specific purpose of providing sufficient funds to pay taxes that will be owed by the estate; the policy pays out the total death benefit upon the death of the surviving spouse. Click here for Sun Life Financial’s version.

Death & taxes: You might not be able to avoid the former but, with a little planning, you can insure against the latter.

Thanks for reading.

Sharon Davis