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Undue Influence in the Estate Context amongst Orthodox Jews – is Arbitration before a Beis Din a viable option?

May 6, 2013 by Charles Wagner | No comments

Is there a moral dilemma for the Orthodox Jewish litigator? On June 4, 2013, the B’nai Brith Canada Trust and Estates Group will be presenting a seminar on dealing with fraud as it impacts on the elderly, their assets and estate disputes. In choosing topics for this year’s seminar and having in mind our constituency, the committee felt it would be remiss if it did not address this topic and how members of our community who face this issue deal with alternative dispute resolution avenues.

Many Jews believe that when there is a dispute between Jews, those altercations must be decided in accordance with Jewish law and before a Jewish court. Such Jews may believe that, to do otherwise, would be tantamount to declaring publicly that the secular court system of justice is preferable to that of the Beis Din. The Shulchan Aruch condemns those who go before a secular court for challenging the value of the Torah’s legal system. Nonetheless, both in commercial and estate contexts, we sometimes see Orthodox Jews bringing their disputes before the secular courts.

For an Orthodox Jewish lawyer who is representing Jewish parties who are suing one another in a secular court, an ethical question arises. It gets further complicated where the client’s rights under secular law far exceed the rights they may have under Orthodox Jewish law. And this may very well be the case in the laws of inheritance. For the upcoming seminar on June 4, 2013, we have invited Archie Rabinowitz of Dentons Canada LLP and Rabbi Mordechai Torczyner of Yeshiva University to address this topic. What happens when an Orthodox Jewish client believes that his Orthodox Jewish sibling has committed a fraud to secure assets he might otherwise be entitled to under secular law but not under Jewish law? How would a secular court deal with these issues and how would the Beis Din? Both Archie Rabinowitz and Rabbi Mordechai Torczyner are uniquely suited to address these questions.

Rabbi Mordechai Torczyner is Rosh Beit Midrash of the Yeshiva University Torah miTzion Beit Midrash Zichron Dov, Toronto, Ontario. Previously he served as a pulpit rabbi in Allentown, Pennsylvania, and in Pawtucket, Rhode Island. Since his arrival in Toronto, he has impressed many in the community with his intellectual honesty, breath of knowledge in both secular and religious studies and commitment to raising the level of Jewish study amongst the modern Orthodox Jewish community.

Archie is certified by the Law Society of Upper Canada as a specialist in Estates & Trusts Law. He has chaired the prestigious Law Society of Upper Canada Annual Estates and Trusts Summit since 2008 and is preferred counsel for LawPRO advising on professional negligence cases arising out of contentious estate and trust matters. He has extensive trial and appellate experience, including cases which in part deal with Halachic issues.

The event will take place on June 4, 2013at Shaarei Shomayim Synagogue, 470 Glencairn Avenue, Toronto, Ontario, M5N 1V8. Registration is at 7:30 a.m. and the presentations will begin at 8:00 a.m. sharp. The event is open to lawyers and accountants. Those lawyers and/or accountants who are interested in attending should contact Anita Brombergof B’nai Brith Canada at 416 633 6224 x130 or email abromberg@bnaibrith.ca.

Dealing with a Testator Whose English is Suspect

April 18, 2013 by Charles Wagner

It seems self evident and almost trite to say that a will must reflect the intention of the testator. Accordingly, those parties who come to court and submit that the will in question is authentic and valid must prove, among other things that the Testator knew and approved of the content of the will.[1] Mistakes in how instructions are taken and the execution of the will may result in disappointed beneficiaries and liability to the solicitors who took the instructions, drafted the Will and saw to its execution. The purpose of this paper is to:

examine how courts have dealt with the issue of knowledge and approval of contents as it relates to non English speaking testators;
reflect on the risks to having the will declared invalid; and
address the issue of potential liability to disappointed beneficiaries and consider the wisdom of certain practices when dealing with such testators.

A careful review of the court’s treatment of these issues may give solicitors reason to reexamine and adjust their will drafting practices.

What is Knowledge And Approval of Contents

In Lidstone v McWilliams[2], the Supreme Court of Canada stated that:

“…The propounder of a will must satisfactorily establish (a) that the testator had testamentary capacity at the date of the execution of the will; (b) that the will had been duly executed and attested, and (c) that the testator knew and approved of the contents thereof.”

The Supreme Court of Prince Edward Island[3] described the obligation of knowledge and approval as follows:

“For knowledge and approval it must be proven that the testator knew and approved of the contents of the will, that the testator realized what is in the will and agreed that is what she wanted. Once the propounder proves that the will was properly executed after it was read to or by the testator and the testator appeared to understand it, the propounder is aided by a rebuttable presumption that the testator knew and approved the contents. The presumption is rebutted if it is shown that the testator did not really understand the contents even though it was so read. When suspicious circumstances are shown, the propounder must show knowledge and approval affirmatively, or depending on the circumstances probate may be refused for all or part of the will: Oosterhoof on wills and Succession (5th ed.), at pp. 168-169; Feeney’s Canadian Law of Wills (4th ed.), at § 3.1.”

It is important to note that knowledge and approval may overlap with issues relating to capacity or undue influence, but they are not the same thing. One may understand and approve of a aill, but still not possess the testamentary capacity either because the decisions contained therein are rooted in delusions or a result of disease or forgetfulness.[4] Furthermore, a testator may know and understand the contents of a will, but has been coerced to sign because of undue influence which goes to capacity.[5]

In Vout v Hay[6] the Supreme Court of Canada indicated that while the propounder of the will has the legal burden to show due execution, knowledge and approval, and testamentary capacity, once there is evidence of due execution and of the will having been read over to the testator, who appeared to understand it, a rebuttable presumption exists that the testator knew and approved of the contents of the will. The Court further went on to explain that this presumption of knowledge of form and content is rebutted where there are suspicious circumstances present. At that time those seeking to establish that the will is authentic reassume the legal burden of proving knowledge and approval.

Suspect English and Suspicious Circumstances

Does the inability of the testator to read or write English constitute suspicious circumstances? In certain circumstances the courts have concluded that the testator’s inability to read or speak English gives rise to suspicious circumstances. Let’s review the case law. In Re Sopel[7] an elderly woman could neither read nor write English, but knew the language well enough to understand what was being said to her in English. The testatrix executed a will, the prime beneficiary of which was the wife of the lawyer who drafted and facilitated its execution. The application for probate was rejected, in part, because the will was not read to the testatrix and the court concluded that she did not know or approve of the contents of the will. While it was in dissent, one of the judges made the following comment that impacts on our discussion:

“Mrs. Sopel was in the position of a marksman or blind person. It was the duty of the appellant to advise her that it was necessary that it be read over to her in the presence of the witnesses. Considering the bequest to his wife, the fact that he did not so advise her gives rise to suspicion.”

In the Schatz Estate case, [8] the testatrix was a woman whose native tongue was German. She was not comfortable speaking English and could neither read nor write. The testatrix’s daughters (and beneficiaries under the will) reviewed the will with their mother and summarized its contents to her in German. The Court referred to the Saskatchawan Surrogate Court Act which required that the due execution of a will for an illiterate person required that the will was read over to the testator. The Court also noted comparable practice in Ontario and quoted MacDoneel, Sheard and Hull which stated:

“When the testator has executed his will by making his mark, the proof shall show that before its execution the will was read over to him and that he had knowledge of its contents and appeared perfectly to understand the same. This rule does not mean that if the will has not been read over to such a testator it can never be proved, but only that it cannot be proved in common form. The will could still be propounded in solemn form, and if it was established that the testator had a clear knowledge of its contents it would be entitled to probate.”

In the Schatz Estate case, the court considered what “read over” meant in this context. Its relevance to our discussion bears it being quoted in full.

5. There is something to be said for reading the words “read over to” in a wide sense to include “summarized to”, “explained to” and the like. In fact, one dictionary definition is “to cause another to become acquainted with the contents of something written”. If narrowly interpreted, petitions which really involve only non-contentious business may come to involve proof in solemn form. Moreover, those involved in the execution of wills know that, in fact, wills are, in circumstances involving execution by mark, often summarized or explained rather than read over word for word, the latter being, in many situations, a futile exercise. Putting this thought into terms of the present petition it may be said:

(1)		That word for word translation from a will written in English (to a testator whose “comfortable” language was German) to German is not theoretically possible.
(2)		The testator would not have understood a word for word reading of the will in any event.

Does this lead to a wide and flexible interpretation of the words “read over” as a practical step?

6. I think, as seems to be suggested in Probate Practice, supra, that the words “read over” mean exactly what they say. If a broad and flexible interpretation were accepted, witnesses to the execution of wills executed by mark would soon be swearing that the will had been “read over” in various broad and flexible senses and all that would be coming before a surrogate or probate judge would be the affidavit in statutory form provided by section 38(2). There would be no question by the surrogate or probate judge — the statutory requirement would have technically been met. The decision would be for the petitioner and his solicitor whether the circumstances of the execution and explanation or summarization justified the swearing of the affidavit in statutory form. The words would eventually come to mean different things to different people.

7. In result, in my view, it is better that the words “read over” be regarded as meaning read over verbatim and not be equated with “summarized”, “explained” or “made acquainted with”. If the words “read over” are to routinely appear in affidavits in support of common form petitions for grants of probate, it is best, and the legislature must have so intended, that the words have the usual and restricted meaning. If it were otherwise it would be for an individual deponent to use the words as he sees fit. While a layman may be able to “explain” or “summarize” this will adequately, it will not always be so. Errors — intentional and nonintentional — are certain. There are not that many cases of testators executing by mark without the will having been read over. Solicitors rarely omit reading over and they supervise most executions by mark. Executions by mark are unusual with lay people. Proof in solemn form need not be, in non-contentious cases, overly formal or lengthy. In the present case my present inclination is that little will be required to prove the will of the testatrix in solemn form.

In a 1999 Alberta Surrogate Court case[9] the validity of the will was attacked. The testator’s English skills were virtually non-existent and the interpreter for both the providing instructions and reading of the will was a non-arm’s length party to the beneficiary. The court concluded,

“The problem in this case is that the deceased had little or no ability with the English language. His interpreter was a loyal supporter of the beneficiaries named in the will. I am not sufficiently satisfied that the deceased understood how he was disposing of his property in order to be able to hold, in good conscience, that in this case there was a proper testamentary disposition.”

In the 1994 Sguigna Estate case before the Ontario Court of Justice – General Division[10] the testratix could not read or write English and had only very basic verbal English skills. The court opined that her inability to communicate in English directly related to her lacking knowledge and approval of the contents of the will. The Court quoted the principle stated in Tyrrell v. Painton et al.,[11] by Davey L.J. as follows:

“the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless the suspicion is removed.”

The lawyer taking instructions spoke to the testator in Italian. However, the lawyer was from the north of Italy and the testator was from the south. They spoke different dialects so that while the lawyer could understand the testator, the testator was unable to completely understand the lawyer. The son of the testator, who was the prime beneficiary under the will, picked up the copy of the will and presented it to his mother for signature before two witnesses (who also did not speak English). The court rendered the following decision.

“I am satisfied from this evidence that Annetta [the testator] was presented with a document which was entirely in English, which she could not read, and which Fred confirms he did not read to her. Nor did he explain to her its contents. I find that it was witnessed by two persons who did not know what was in the document and who cannot testify to the formalities for execution required under the Succession Law Reform Act. On those grounds and on that evidence alone I find that Fred, as the person offering the will for probate, has failed to meet the onus of proving due execution and knowledge and approval of the contents of the will by the testratrix. Accordingly this will shall not be admitted to probate.”

Clearly this case indicates that when a testator does not speak English, it can give rise to suspicious circumstances which rebuts the presumption that the testator had knowledge and content of the will. Claims of solicitor’s negligence may arise if those who propound the will fail to prove it authentic and are unable to establish that the testator knew and approved of the content of the will. For those with non English speaking clients this issue suggests that one would be wise to review the manner of taking instructions and seeing to the execution of a will.

Of particular interest to me is paragraph 31 of Haley J.’s decision, “It is not sufficient in establishing the knowledge and approval of the contents of the will by the testatrix to show that she understood the primary dispositive feature of the will. While she may not understand the technical law relating to powers of executors and priority in payment of debts it is essential that she understand the complete chain of the dispositive provisions, e.g., gifts over.” Often lawyers dealing with unsophisticated illiterate clients only deal with the main points in the will in a very summary fashion. Is that enough? For Justice Haley the answer seems to be no.

Dealing With Testator Who Cannot Read, Speak or Understand English

Solicitors who do not take proper steps to ensure that the will properly reflects the testator’s instructions risk liability to disappointed beneficiaries. In discussing the issue of solicitors’ liability in negligence cases, Ontario’s Court of Appeal[12] referred to M.M. Litman & G.B. Robertson G.B. article on “Solicitor’s Liability for Failure to Substantiate Testamentary Capacity”. [13] The Court states:

“….The authors then identify solicitors’ common errors that have been either the subject of criticism by the courts or the basis of liability for professional negligence in the preparation of a will. These include:

• the failure to ascertain the existence of suspicious circumstances,

• the failure to react properly to the existence of suspicious circumstances,

• the failure to provide proper interview conditions (e.g., the failure to exclude the presence of an interested party),”

So what is the best way to deal with a testator whose English skills are so suspect such that those who oppose a will may use that deficiency in the English language to challenge the will?

In preparation for this paper I have reviewed a number of the checklists, text books and cases relating to this issue and will review some of the options presently in use by solicitors and recommended by different authorities.

The Client’s English is good enough……

There are some solicitors who feel quite capable of communicating with a testator whose English is suspect either because the testator’s will is a simple one or they are persuaded that the testator’s English is good enough to understand the explanation given. Some cases suggest that regardless of a testator’s suspect English skills, a will should be probated if the solicitor satisfies the court that he sufficiently explained the will so that the testator had knowledge and approved of the will’s Content. [14]

On the other hand, there is case law that says the exact opposite. In the case of the Dansereau Estate[15] the testator was bilingual in matters of everyday living, but her first language was French. She felt more comfortable speaking French when dealing with complicated or sensitive issues. Therefore even when the will was reviewed and explained to her by a senior estate lawyer, the court found that the testator did not have the requisite knowledge and approval of the will because the lawyer seeing to its execution was unable to explain in French the documents that he presented to her for execution.

Clearly, the court’s decisions will always turn on facts specific to each case. However, the best practice is to ensure that the manner of a will’s execution leaves little room for doubt and that the testator’s knowledge and approval of the will can later be proven in court.

Someone in my office speaks……

A common practice for people working with ethnic communities is to hire administrative staff who speak the language. As well, lawyers sometimes work in their own ethnic communities and use their supplementary languages skills as a marketing feature. Under these circumstances the courts have often approved of lawyers who read over and explain the will to testators in their own language[16] and the various law society and text book checklists often recommend referring such a testator to someone who speaks the testator’s language in order to avoid the allegation of suspicious circumstances.[17]

Unless the person in the law office has a proper command of both the English language and the language of the testator there is the risk that the will cannot be probated and the solicitor who took the instructions and saw to its execution risks liability to disappointed beneficiaries. The courts have looked askance at wills when the comprehension of the testator was put into question because the lawyer and client spoke Italian of different dialects.[18] Each case will turn on its facts, but common sense dictates that if either the testator’s or translator’s language skills are not sophisticated enough to accurately communicate the contents of the will the risk of the will being overturned and liability to the solicitor is enhanced.[19]

Testator’s Friend acts as Interpreter

The testator brought in a friend and makes it clear in broken English that this friend will translate on his behalf. The friend translates the instructions and reads over the will and summarizes it for the plaintiff.

This practice poses a number of difficulties. Unless the solicitor is familiar with the client and his friend it is difficult to independently determine the testator’s intentions, capacity and knowledge of the content of the will. In Re Vleeming Estate[20] the testator knew no English. He brought in a friend to act as translator who, unbeknownst to the solicitor who drafted the will, was a loyal supporter of the beneficiaries named in the will. The court ruled that this was not a proper testamentary disposition.

In his book, W. A. McIntyre rejects this option because “doubt will remain as to the competence and objectivity of the interpreter.”[21]

Employ A Certified Interpreter – The Gold Standard

The Law Society of British Columbia recommends, “As for the testator whose first language is other than English, the wisest course, if the solicitor does not speak the client’s first language, is either to send the client to a solicitor who does speak that language, or if that is not possible, to employ an interpreter.”[22] One author suggests that the solicitor should retain an independent professional interpreter who will certify that the will was fully and fairly translated to the testator.[23]

Two objections have been raised with respect to this solution. Some suggest it raises the bar too high and that the additional costs make it impractical. Adding an additional $150 will price the solicitor’s services out of the market.

Despite these objections, McIntyre’s suggestions seem like the best way for a solicitor to ensure that the propounders of the will can later prove that the testator possessed knowledge and content of the will. The fact that this practice may be more than is usually necessary should not dissuade those considering its uses. An independent interpreter’s certification kept on file will further limit will challenges and reduce the chance of accusations of negligence.

The concern that using a translator makes the drafting of simple wills cost prohibitive is a concern. However, for many who practice in this area it is rare that a solicitor ever recovers his/her usual hourly rate for the preparation of a simple will. They are drafted in any event because the solicitor anticipates additional revenue streams from the fees associated with acting for the estate upon the testator’s demise. If that is the case the additional costs are a low price to pay.

One final comment. This article is intended to help those involved in the estate planning process to be familiarized with some of the issues relating to the requirement that a testator have knowledge and approval of the contents of his or her will. It is not a substitute for lawyers’ own research and analysis. It is not intended to provide substantive legal advice nor opinions.

[1] Feeney’s Canadian Law of Wills, 4th ed., loose leaf, by Thomas G. Feeney & James Mackenzie (Toronto: Butterworths, 2000) Chapter 3 page 3.1

[2] Lidstone v McWilliams, [1931] 3 D.L.R. 455 (S.C.C.)

[3] Praught Estate, Re, 2002 PESCTD 1, 2002 CarswellPEI 2, 208 Nfld. & P.E.I.R. 64, 624 A.P.R. 64, 43 E.T.R. (2d) 289 (P.E.I. T.D.)

[4] Batten Singh v Amirchand (1947), A.C.. 161 (P.C.) 170

[5] Martin Estate, Re 53 D.L.R. (2d) 126; [1965] S.C.R. 757,

[6] Vout v. Hay, [1995] 2 S.C.R. 876, 7 E.T.R. (2d) 209, 125 D.L.R. (4th) 432

[7] Reference Re Sopel Estate, 1951 CarswellMan 39, 3 W.W.R. (N.S.) 451

[8] Schatz Estate, Re (1976), [1976] 5 W.W.R. 549, 1976 CarswellSask 68 (Sask. Surr. Ct.)

[9] Vleeming Estate, Re [1999] A.J. No 180; 1999 ABQB 141

[10] Sguigna Estate, Re, 1994 CarswellOnt 3298, [1994] O.J. No. 1612 (Ont. Gen. Div.)

[11] Tyrrell v. Painton et al., [1894] p.151 at pp. 159-60

[12] Hall v Bennet Estate 2003 CarswellOnt 1730, 15 C.C.L.T. (3d) 315, 171 O.A.C. 182, 64 O.R. (3d) 191, 227 D.L.R. (4th) 263, 50 E.T.R. (2d) 72

[13] “Solicitor’s Liability for Failure to Substantiate Testamentary Capacity” [13](1984), 62 Can. Bar Rev. 457.

[14] Krzanstek Estate v. Volcko [1990] A.J. No. 416

[15] Dansereau Estate v. Vallee[1999] A.J. No. 878 1999 ABQB 557

[16] Boutzios v. Boutzios, 2004 CanLII 14219 (ON S.C.); Karzanstek Estate v Vocko 74 ALtlR 2d 221

[17] http://www.lawsociety.bc.ca/docs/practice/checklists/G-2.pdf; www.lawsociety.bc.ca/docs/practice/checklists/G-3.DOC

[18] Sguigna Estate, Re, 1994 CarswellOnt 3298, [1994] O.J. No. 1612 (Ont. Gen. Div.)

[19] Dansereau Estate v. Vallee[1999] A.J. No. 878 1999 ABQB 557

[20] Vleeming Estate (Re) [1999] A.J. No. 180; 1999 ABQB 141

[21] McIntyre, WA, Practical Wills Drafting. Toronto: Butterworths, 1992 p. 6.

[22] http://www.lawsociety.bc.ca/licensing_membership/pltc/docs-material/estates _ch3.pdf paragraph 3.05; Re Shumlay Estate [1946] 3 W.W.R.. 540

[23] McIntyre, WA, Practical Wills Drafting. Toronto: Butterworths, 1992 p. 6 and Chapter 14.

The Unseen Risk to Personal Injury Victims

February 11, 2013 by Charles Wagner

The recent Ontario case of Timbers Estate v. Bank of Nova Scotia,[1] illustrates the vulnerability of those who are victims of a catastrophic injury. Jeffrey Timbers was in a car accident in 1993 and remained in a coma until his death in 2005. Who negotiates for someone like him? Who hires the personal injury lawyer or gives the lawyer instructions? When there is a settlement, who manages the money received? In this case, Jeffrey Timbers’ brother-in-law, Gordon Wood, was appointed his guardian of property[2] and managed the money received from the insurance company. When Mr. Timbers died, his daughter became the estate trustee of his estate. After reviewing the documents, she came to the conclusion that her uncle Mr. Wood had stolen settlement money from the structured settlement payments. There seemed to be a lot of missing money and Jeffrey Timbers’ daughter, in her capacity as estate trustee, ended up bringing a claim for damages for breach of trust in the amount of $900,000. While the case itself is interesting, for the purpose of this blog, I want to address the concern about how the process failed Mr. Timbers. What steps might have been taken to catch an allegedly dishonest power of attorney or guardian of property and better protect someone like Jeffrey Timbers?

It may help to review the personal injury claims process for parties under disability. In Ontario, an injured person may be entitled to make a personal injury claim.[3] When the injured person is unable to manage his property,[4] he is considered to be a person under disability.[5] If the injured party has a power of attorney for property, then the person he appointed as his attorney will hire a lawyer who will file the appropriate affidavit with the court so that the attorney can act as the litigation guardian.[6] If there is no power of attorney, then someone has to go to court to be appointed guardian of property. Even though someone can file an affidavit to be a litigation guardian without being an attorney for property or a court appointed guardian of property, it is prudent to make an application to court for the appointment of a guardian of property so that, outside the litigation, someone is able to speak on behalf of the injured person who cannot speak on his own behalf. For example, once the claim is settled, someone has to be able to manage the settlement money.

The guardian of property has the ability to do everything the incapable person could have done except make a will. The application to appoint a guardian of property is brought under the Substitute Decision Act (the “SDA”).[7] There is a process to ensure that the incapable person receives a fair deal and is protected. Rule 7.08[8] of the Ontario Rules of Civil Procedure provides that every settlement involving a person under disability requires a judge’s approval. The judge reviews everything from the quantum of the settlement to the reasonableness of the fees charged by the lawyer. The judge also reviews affidavits of the litigation guardian and the lawyer acting for the litigation guardian. These affidavits set out the reasons why the litigation guardian and the lawyer believe the settlement is in the best interests of the person under disability. Notice must also be provided to the Public Guardian and Trustee (the “PGT”) and the judge may ask the PGT for its views.[9] Up to that point, there is a protocol in place to protect a victim of a catastrophic injury. The real risk begins once the settlement is finalized and the insurance company has paid the money. At that point, the court appoints a guardian of property to manage the assets of someone who has suffered a catastrophic injury. The problem is, after the appointment, there is rarely someone checking up on him or her.

One of the problems in these types of cases is that the person who is appointed guardian for property is usually a trusted member of the family. It may be the accident victim’s wife, child, parent or sibling who selflessly gives up their rights to compensation to get more for their family member who needs it most. While the PGT may make spot-checks, there is no one really watching the guardian of property on a regular basis to ensure that the guardian of property is using the money for the benefit of the injured party. Will the trusted family member act as selflessly as we hope? Unfortunately, as alleged in the Timbers Estate case, there are times when even trusted family members take advantage of the most vulnerable.

Remember that in personal injury cases there is quite often a lot of money involved. A successful motor vehicle accident claim can provide income replacement benefits, caregiver benefits, medical and rehabilitation benefits, attendant care benefits, and the payment of various other expenses. In cases of truly catastrophic impairment, this can mean a payout of millions of dollars.[10] After tough negotiation about the cause and consequences of the personal injury, the insurance companies will usually agree to some form of lump-sum payment or structured settlement agreement. A structured settlement is a type of insurance product called an annuity that guarantees the injured person a fixed stream of tax-free payments, usually for life. One of the key advantages of the structured settlement is, of course, that the injured person is in no danger of outliving his benefits. What can or should family members do to protect the person under disability and ensure that the guardian of property does not take advantage of the situation?

Here are some options to consider when a member of their family has gone through a catastrophic injury:

Obligation of Guardian of Property to Keep Records: It is important to remind the guardian of property that he or she is a fiduciary[11] who has both a common law and statutory duty to keep accounts of all transactions involving the disabled person’s property.[12] If the proposed guardian of property is aware of his or her obligations, and is aware that concerned family members know of that duty, this may make him or her think twice before taking advantage of the situation. The regulations are quite comprehensive, but in summary, a guardian of property must keep vouchers showing a list of assets at the beginning of the process, a list of what cash and assets were required and what was disposed of, and any investments made. If the guardian of property is not keeping records or is not prepared to show the records to concerned family members, you may consider this a red flag for concern.

Passing of Accounts. There are three points where family members should ask that the court make an order that the guardian of property pass his or her accounts at regular intervals. Making the guardian pass his or her accounts means that the guardian will have to show all the records of what transpired with the property of the incapable person while the guardian of property was in charge. It will allow those who brought the motion to compel a passing of accounts to verify if the guardian of property has properly managed the incapable person’s money. If the objections are not answered, the matter goes to trial. The three points in time where one might ask a court to order that a guardian of property pass his or her accounts are as follows:

Application to appoint guardian of property. When there is a catastrophic personal injury resulting in the accident victim becoming incapable, a motion to appoint a guardian of property will take place. At that point, family members can ask for the order to provide that the guardian of property pass his or her accounts at regular intervals;
Motion for Approval of Settlement. As indicated above, any settlement negotiated on behalf of an incapable person has to be approved by the court. The guardian of property must bring a Rule 7 motion seeking approval of the settlement by a judge. At that point, family members can also ask the court to include a provision in the judgment that the guardian of property pass his or her accounts at regular intervals;
Section 42(4) Motion seeking leave to compel an accounting. As explained above, the guardian of property is a fiduciary whose powers and duties must be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.[13] Section 32(6) of the SDA requires the guardian of property, in accordance with the regulations, to keep accounts of all transactions involving the property. Now what happens if there is suspicion of foul play and the guardian of property refuses to disclose the bookkeeping? Arguably, this is contrary to his or her obligations under the SDA, which provides that the guardian of property must consult with supportive family members and friends of the incapable person.[14] Failure to share what’s going on should be a red flag of concern and, arguably, gives reasonable cause for a concerned family member or friend to consider bringing an application under subsection 42(4) of the SDA for leave to compel the guardian of property to pass his or her accounts.[15]

This short overview of the law should not be taken as legal advice In the event that you or a person you care about is injured and/or potentially incapable, nothing is as useful as retaining a competent personal injury lawyer who will do a thorough analysis of the law and the fact situation to provide proper advice about the prospects of an accident benefits claim, a structured settlement, a guardianship application or, if necessary, a breach of trust claim or application for leave to have the guardian of property pass his accounts.

The authors are Charles B. Wagner and Brendan Donovan. Brendan is an associate and Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

[1] Timbers Estate v. Bank of Nova Scotia, 2011 ONSC 3639 (CanLII).

[2] The process for appointing a guardian of property in Ontario is set out in sections 22-30 of Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[3] Under the statutory accident benefits scheme created by, inter alia, the Insurance Act, R.S.O. 1990, c. I.8, the Statutory Accident Benefits Schedule, O. Reg. 34/10, and the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96.

[4] Please see section 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, which provides that a “person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

[5] Under Rule 1.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the definition of “disability” includes a person who is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not. Section 6 of the Substitute Decision Act is set out above in endnote iv.

[6] See Rule 7.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that, for a party under disability, the lawsuit must be commenced by a litigation guardian. A court appointment for a plaintiff and applicant is not necessary if the mentally incapable person has a guardian with authority to act as a litigation guardian. No person except the Office of the Childrens Lawyer or the PGT can act as a litigation guardian for the plaintiff or applicant until that person has filed an affidavit which sets out that the person: (a) consents to act as litigation guardian in the proceeding; (b) confirms that he or she has given written authority to a named lawyer to act in the proceeding; (c) provides evidence concerning the nature and extent of the disability; (d) in the case of a minor, states the minor’s birth date; (e) states whether he or she and the person under disability are ordinarily resident in Ontario; (f) sets out his or her relationship, if any, to the person under disability; (g) states that he or she has no interest in the proceeding adverse to that of the person under disability; and (h) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability.

[7] See section 22 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[8] See subrule 7.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: “No settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.” As well, please see DeMichino (Guardian of property of) v. Musialkiewicz (June 28, 2012, Juriansz, LaForme and Epstein JJ.A., Ontario Court of Appeal) 217 A.C.W.S. (3d) 709. In this case the lawyers for he plaintiff (who suffered catastophic injuries) sought a premium for legal services rendered. The motion judge did not approve of the settlement because the judge felt the premium to be excessive. On appeal the plaintiff’s lawyer suggested a reduced premium which was approved. Decision reflects the court’s desire to ensure that the settlement is in the best interests of the incapable person.

And subrule 7.08(2): “Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge.”

[9] See subrule 7.08(5):“On a motion or application for the approval of a judge under this rule, the judge may direct that the material referred to in subrule (4) be served on the Children’s Lawyer or on the Public Guardian and Trustee as the litigation guardian of the party under disability and may direct the Children’s Lawyer or the Public Guardian and Trustee, as the case may be, to make an oral or written report stating any objections he or she has to the proposed settlement and making recommendations, with reasons, in connection with the proposed settlement.”

[10] The legislation and case law surrounding the definition of “catastrophic impairment” is complex. For a recent decision of the Ontario Court of Appeal, see Pastore v. Aviva Canada Inc., 2012 ONCA 642 (CanLII).

[11] A fiduciary is a person with both a legal and ethical duty of trust. There is both a common law and statutory fiduciary obligation on an attorney for property. The statutory duties are set out in sections 32 and 38 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. As articulated by Professor Waters in his book Waters’ Law of Trusts: “It is a fundamental principle of every developed legal system that one who undertakes a task on behalf of another must act exclusively for the benefit of the other, putting his own interests completely aside. In the common law system this duty may be enforceable by way of an action by the principal upon the contract of agency, but the modes in which the rule can be breached are myriad, many of them in situations other than contract and therefore beyond the control of the law of contract. It was, in part, to meet such situations that Equity fashioned the rule that no one may allow his duty to conflict with his interest.”

[12] Someone who is appointed as an attorney for property has a duty to keep proper records, which includes a duty to obtain and keep receipts. In Ontario, that common law duty has been codified under the Substitute Decisions Act, 1992, S.O. 1992, c. 30, see sections 32(6) Duties of guardian, Accounts; 33(1) Liability of guardian and 42; Passing of Accounts, as well as under Accounts and Records of Attorneys and Guardians, O. Reg. 100/96.

[13] See subsection 32(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 .

[14] See subsection 32(5) of the SDA, the Substitute Decisions Act, 1992, S.O. 1992, c. 30 .

[15] Under subsection 42(4) of the SDA the Substitute Decisions Act, 1992, S.O. 1992, c. 30 . The legislation provides that the following persons may apply to have the guardian of property pass his or her accounts: (1.) the grantor’s or incapable person’s guardian of the person or attorney for personal care; (2.) a dependant of the grantor or incapable person (in our case, Jeffrey Timbers’ daughter, if she was a dependant, could have applied to court to have her uncle pass his accounts); (3.) the PGT (if there are suspicions and you report them to the PGT, the PGT may commence an application for an accounting); (4.) the Children’s Lawyer; (5.) a judgment creditor of the grantor or incapable person.; or (6.) any other person, with leave of the court. Normally, “any other person with leave of the court” is the category most concerned family members will fall under. But “any other person” must first seek leave of the court in order to apply to have the guardian of property pass his or her accounts.

Capacity in the Estate Context

November 28, 2012 by Charles Wagner

I was invited to speak at a Law Society of Upper Canada CLE seminar that took place on October 30, 2012. It featured many people who I consider some of the best practioners in this area. My paper[1] analyzed whether Justice Cullity, in Banton v. Banton,[2] expanded the test on insane delusions. At the actual presentation, Jordan Atin, the Chair of the program, asked Ian Hull and me to address a potpourri of issues. My topics included capacity, undue influence, managing client expectations, and evidence in the context of estate disputes. Ian Hull spoke on strategy in estate litigation among other topics. At the conclusion of the seminar I received a number of requests to provide my notes or something more formal to those who enjoyed the presentation. They felt the time was short and wanted specifics of some of the source material I referred to for use in their practice. This blog is, in part, a response to those requests and provides a review and sources for my comments on capacity and undue influence.

When challenging a will, testamentary capacity is often the key issue. Let’s first review the seminal English case Banks v. Goodfellow[3] which has been adopted in Ontario[4]. This case stands for the proposition that the testator has testamentary capacity if:

the testator understands the nature of making a will and its effects;
the testator understands the extent of the property being disposed of;
the testator understands the nature of the act and its effects;
the testator appreciates the claims to which he or she ought to give effect; and
finally, no insane delusion influences his or her will in disposing of the property and brings about a disposal of which, if the mind had been sound, would not have been made.

In the authoritative text of Feeney’s Canadian Law of Wills[5] the learned author answers the question “what is testamentary capacity” as follows, “To use the time-honoured phrase, a person must be “of sound mind, memory and understanding” to be able to make a valid will. When a will is contested on the ground of mental incapacity, the propounder must prove that the testator understood what he or she was doing: that the testator understood the “nature and quality of the act.” The testator must be able to comprehend and recollect what property he or she possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to each beneficiary and, finally, the nature of the claims of others who are being excluded.”

For the purpose of this blog I prefer not to revisit in detail the issue of delusions. I have addressed that topic extensively in the paper I delivered at the CLE event which is available online for the reader at this link Insane Delusions – Has The Test Been Expanded? Suffice to say that the test for delusions is two pronged. Firstly for a testamentary document to be set aside there must be a delusion. For it to be a delusion the belief held must be one that no one could reasonably believe. Secondly, mental disease is not enough. For the will to be set aside the decision by the testator to disinherit a person must be rooted in the delusion. It behooves us to remember that in Banks v. Goodfellow[6] the testator believed that he was molested by evil spirits, but the will was upheld because there was no connection between the delusions and the dispositions made by the testator.

A very important question regarding the issue of testamentary capacity is at what time in the process is the capacity of the testator relevant? The rule is set out in Parker v. Fieldgate – the key moment is the time the testator provides instructions.[7] What is also important is that at the time of execution the testator needs a sufficient level of capacity to comply with the formalities of execution.[8] A will may be set aside for failure to comply with the formalities of execution[9].

A foundation point in these sorts of discussions is that the testamentary document should genuinely reflect the decisions of the testator[10]. Was there coercion? Did the testator know and approve of what was set out in the will? These two issues are referred to as undue influence and “knowledge and approval”. To be clear it may very well be that a person has testamentary capacity but the testamentary document can be set aside for other reasons. For example, it may be set aside because of coercion and/or fraud (i.e. undue influence). The testamentary documement may be set aside because the testator did not understand the wording or there perhaps it will be rectified because there was an error when drafting the will such that the testator’s intentions were not set down accurately. In that sort of case it is arguable that the testator did not know or approve of the testamentary document. This topic of rectification is one that is beyond the scope of this blog, but merits careful review. As a starting point, I refer the reader to Rectification – the Equitable Remedy to Fix Errors in a Will.

One basis for challenging the validity of a Will is the allegation of undue influence. If there are suspicious circumstances surrounding the testator then the normal presumption, that a Will is valid if properly executed, is rebutted. It is now up to the person claiming that the new testamentary document is valid to prove that there was no coercion or undue influence on the testator.[11]

The equitable doctrine of undue influence was developed[12],not to save people from the consequences of their own folly but to save them from being victimized by other people. These cases may be subdivided into two groups. In the context of a will challenge the question is whether there was any coercion by a beneficiary on the testator. Whether the influence is “undue” is a matter of fact and there is arguably a sliding scale depending on the vulnerability of the testator and his/her dependence on the person exercising the influence. Has the person being accused of exercising undue influence exercised some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating, some sort of fraud?

The second group deals with disputes surrounding gifts that took place prior to the demise of the testator. At issue is whether the person accused of undue influence has gained some personal advantage because of the reliance of the donee on the recipient of the benefit. In Ontario, Canada those who are appointed as Attorney for Property are designated by statute as a fiduciary. Other parties may also be considered fiduciaries depending on the role they played in the testator’s lives[13]. As articulated by Professor Waters in Law of Trusts in Canada, Second Edition (Carswell: 1984, Toronto): “It is a fundamental principle of every developed legal system that one who undertakes a task on behalf of another must act exclusively for the benefit of the other, putting his own interests completely aside”. So what happens when a fiduciary gets a gift? There is a presumption of undue influence.[14]

Mr. Justice Cullity[15] set out the following factors to consider in an undue influence claim:

the willingness or disposition of the persons to have exercised undue influence;
whether an opportunity existed;
the vulnerability of the testator[16];
the degree of pressure that would be required;
absence of moral claims of the beneficiaries;
whether the will departs radically from the dispositive pattern of earlier wills.

When investigating if someone knew and approved of the testamentary document these are some red flags to watch for including blindness, illiteracy, inability to understand English,[17] unexplained radical departure from previous wills, sequestration of testator, manipulative behavior by the main beneficiary to obtain all of the deceased’s assets, the presence of a new lawyer or the absence of independent legal advice, and whether statements or actions of the testator subsequent to the making of the alleged will were fundamentally inconsistent with its terms.

The capacity to grant or revoke powers of attorney and capacity to manage one’s property and personal care is a different test. These disputes often arise when families wrestle over control of aging parents’ assets or the responsibility for their care. Ever increasingly the behaviour of financial predators, caregivers, friends and family members lead to disputes regarding the capacity of seniors to make gifts and even the capacity to marry. The latter becomes all the more significant because marriage can involve revocation of previous wills[18], entitlement to property and support rights under Part II and Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26. When discussing the different types of capacity it is important to remember that the definitions of capacity are task specific. From highest to lowest they are:

Testamentary capacity.[19]
Capacity to manage property has a lower threshold than testamentary capacity.[20]
Capacity to manage personal care has a lower threshold than the capacity to make a will or manage property.[21]
The threshold for capacity to appoint or revoke a power of attorney is lower than the threshold for testamentary capacity and or the capacity to manage property or personal care.[22]
Capacity to make a gift or enter into a contract is a sliding scale depending on the size of the gift.[23]
The threshold for the capacity to marry seems to the lowest. I caution the reader that this may be subject to change and there are several excellent papers and books written that should be reviewed when confronted with this situation[24]

This short blog was based on my notes, with respect to capacity, from the CLE event. It is not meant to provide anything more than an overview of the topic on capacity as well as access to some of the very excellent books and papers on the topic.

[1] C. Wagner and N. Herrmann, Insane Delusions – Has The Test Been Expanded? (Toronto: LSUC Estate Litigation Practice Essentials, 2012).

[2] 1998 CarswellOnt 3423, 164 D.L.R. (4th) 176, 66 O.T.C. 161.

[3] Banks v. Goodfellow (1870), All E.R. Rep. 47 (Q.B.) is the seminal case. See page 565, which sets out the test. It has been adopted by Canadian courts. See Popke v. Bolt (2005), ABQB 214 (Alta. Q.B.), and Larocque v. Landry (1922), 52 O.L.R. 479 (Ont. C.A.). I would also refer the reader to Justice Laskin’s summary of the elements of capacity in Schwartz v. Schwartz, [1970] 2 O.R. 61 (Ont. C.A.). The testator must be sufficiently clear in his understanding and memory, to know on his own and in a general way, (a) the nature and extent of his property, (b) the persons who are the natural objects of his bounty, and (c) the testamentary provisions he is making; And he must be capable of (d) appreciating these factors in relation to each other, and (e) forming an orderly desire as to the disposition of his property.

[4] Banks v. Goodfellow has expanded on the factors that will demonstrate that a testator has the “sound and disposing” mind necessary to make a valid will. Justice Charron, of the Ontario Court of Appeal, summarized these requirements in Hall v. Bennett Estate, noting that in order to have a sound and disposing mind a testator:

• must recollect the nature and extent of his or her property; *must understand the extent of what he or she is giving under the will;

• must remember the persons that he or she might be expected to benefit under his or her will; and * where applicable, must understand the nature of the claims that may be made by persons he or she is excluding from the will.

[5] Feeney, Thomas G. & Jim Mackenzie. Feeney’s Canadian Law of Wills, 4th ed., looseleaf (Toronto: Butterworths, 2000), paragraph 2.6

[6] See Footnote 3 for the citation.

[7] Parker v Fieldgate (1883), 8 P.D. 171. The rule, in Parker v. Felgate provides that even if the testator lacked testamentary capacity at the time the will was executed, the will is still valid if: The testator had testamentary capacity at the time he or she gave the lawyer instructions for the will; (b) The will was prepared in compliance with those instructions; and (c) When the testator executed the will, he or she was capable of understanding that he or she was signing a will that reflected his or her own previous instructions.This, keeping in mind the requirements for due execution as set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26

[8] Section 4.(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 states, “Subject to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

[9] Please see Have Ontario’s Courts Dispensed with Strict Compliance with the Formalities of Execution? – this is article found at http://www.hg.org/article.asp?id=27886

[10] I make this comment with some trepidation given the recent case law on rectification. Often disappointed beneficiaries ask the court to fix the mistake where the lawyer who drafted the will may admit that he inadvertently drafted the will contrary to the instructions of the deceased. The legal term for this request is “Rectification”. Courts use this equitable remedy very carefully. Exactly what type of evidence a judge may consider is being debated in the courts. How sure does the court have to be to fix the mistake? Is the court limited in how it can fix the mistake? In exercising the remedy is the court limited to only being able to delete certain parts of the will? Can a judge add missing words? I refer the reader to Rectification – the Equitable Remedy to Fix Errors in a Will .

[11] See analysis of Vout v. Hay 1995 CarswellOnt 186, 7 E.T.R. (2d) 209, 125 D.L.R. (4th) 431, [1995] 2 S.C.R. 876, 183 N.R. 1, 82 O.A.C. 161 at http://www.wagnersidlofsky.com/articles/grounds-for-challenge.php

[12] as was pointed out by Lindley L.J. in A/Icard v.Skinner. 36 Ch. D. 145, [1886-90] All E.R. Rep. 90 (C.A.),

[13] I found the looseleaf text “Fiduciary Duties in Canada” By: Mark Vincent Ellis a useful reference for this issue.

[14] For those advocating that a challenged gift is valid I refer you to section 2(4) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 which deals with onus of proof, contracts and gifts. The section provides, “In a proceeding in respect of a contract entered into or a gift made by a person while his or her property is under guardianship, or within one year before the creation of the guardianship, the onus of proof that the other person who entered into the contract or received the gift did not have reasonable grounds to believe the person incapable is on that other person.” Query whether a gift is valid if the recipient of the gift had reasonable grounds to believe the incapable person to be capable? I know of no determinative judicial review of this section.

[15] See Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. Sup. Ct. J.),

[16] For an excellent article on this topic see Assessment of Testamentary Capacity and Vulnerability to Undue Influence Kenneth I. Shulman; Carole A. Cohen; Felice C. Kirsh; Ian M. Hull; Pamela R. Champine Am J Psychiatry 2007;164:722-727.

[17] See “Testator Does Not Speak English by Charles B. Wagner

[18] See section 15(1) of the the Succession Law Reform Act, R.S.O. 1990, c. S.26.

[19] The threshold for testamentary capacity is the highest. See Penny v. Bolen, 2008 CanLII 48145 (ON.S.C.) at para. 19: “There are different tests for the capacity to make a Power of Attorney for personal care and for property. A person may be incapable of managing property but capable of making a Power of Attorney for Property. With respect to Powers of Attorney for Personal Care the capacity threshold is much lower than for Power of Attorney for Property which is lower than the capacity required to execute a will.”

[20] The test for determining the capacity to manage property is found at section 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 . Capacity to manage property is defined as: (a) The ability to understand the information that is relevant in making a decision in the management of one’s property; and (b) The ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

[21] Under section 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 , the test for determining capacity required for managing personal care is: (a) The ability to understand the information that is relevant to making a decision relating to his or her own health care, nutrition, shelter, clothing, hygiene or safety; and (b) The ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision. A person who is sixteen years of age or older is presumed to be capable of making personal care decisions.

[22] Please see section 8 of the 47 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 . For property the threshold requires (a) knowledge of what kind of property he or she has and its approximate value; (b) awareness of obligations owed to his or her dependants;(c) knowledge that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will,

subject to the conditions and restrictions set out in the power of attorney; (d) knowledge that the attorney must account for his or her dealings with the person’s property; (e) knowledge that he or she may, if capable, revoke the continuing power of attorney; (f) appreciation that unless the attorney manages the property prudently its value may decline; and (g) appreciation of the possibility that the attorney could misuse the authority given to him or her.

[23] The test for capacity to give a gift changes if the gift is significant in value, in relation to the donor’s estate. In such cases, the applicable capacity test changes to the test for capacity to make a will, that is , testamentary capacity. In the English case of Re. Beaney, the judge explained the difference in tests for capacity to give gifts or make gratuitous transfers as follows: At one extreme, if the subject-matter and value of a gift are trivial in relation to the donor’s other assets a low degree of understanding will suffice. But, at the other, if its effect is to dispose of the donor’s only asset of value and thus for practical purposes to pre-empt the devolution of his estate under his will or on an intestacy, then the degree of understanding required is as high as that required to make a will, and the donor must understand the claims of all potential donees and the extent of the property to be disposed of. See Kimberly Whaley, “Comparing the Various Tests of Capacity” Law Society of Upper Canada, 13th Annual Estates& Trusts Summit (November 18, 2010). See http://www.whaleyestatelitigation.com/

[24] A must read for anyone dealing with this issue is the book “Capacity to Marry and the Estate Plan” in 2010, with co-authors: Kimberly Whaley, Dr. Michel Silberfeld, Heather McGee and Helena Likwornik, the February 9, 2012 paper “The Capacity to Marry and Divorce” presented at the OBA Institute Trusts and Estates Law Seminar on February 9, 2012 and the decision of Justice Cullity in Banton v Banton. This is a case that addresses this threshold issue. Section 7 of the Ontario Marriage Act prohibits a person from issuing a license to or solemnizing “the marriage of any person who, based on what he or she knows or has reasonable grounds to believe, lacks mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason.” Common law capacity to marry was essentially equivalent to the capacity to enter into any binding contract, and certainly at a lower threshold than testamentary capacity.

Have Ontario’s Courts dispensed with Strict compliance with the Formalities of Execution?

August 12, 2012 by Charles Wagner

Imagine that Johnny is dying. The doctors tell him to get his affairs in order. The patient’s only living relative is an elderly aunt whom he despises. Johnny wants to give all his money to his Church but, without a Will, by virtue of Ontario’s laws of intestacy that aunt will inherit everything. A lawyer prepares a Will setting out Johnny’s testamentary wishes. Johnny walks into the lawyer’s office, reads the will, and says it’s perfect. There is no doubt as to Johnny’s intent as the lawyer has taken the precaution to videotape the whole process. Johnny picks up the pen, is about to sign and dies. Is the Will valid in Ontario? It is almost certainly not valid [FN1], but there remains some doubt. If everyone knows Johnny’s true testamentary intentions what rationalization exists for not accepting the unsigned document as a valid Will?

The legislatures, courts and Law Reform Committees in Canada have provided different policy reasons to justify strict compliance with the formalities of execution. It’s been suggested [FN2] that the formalities of execution:

Ensure that the Will was executed by the person purporting to be the testator and prevents a ne’er-do-well from impersonating the testator or someone from forging the testator’s signature;
Avoid fraud, undue influence and coercion;
Enhance the testator’s appreciation of the importance of the document;
Make the administration easier with respect to granting probate; and
Prevent opening the flood gates to various claims respecting documents that are purportedly wills.

In Ontario the rules with respect to wills, known as the formalities of execution, are set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26 [SLRA]. The formalities of execution require that a will be in writing (s.3) and signed by the testator (or by some other person in the testator’s presence and by the testator’s direction), with the testator acknowledging their signature in the presence of two or more attesting witnesses present at the same time. Further, the will must then be signed by the two or more witnesses in the presence of the testator (s.4). Section 4(1)(a) of the SLRA is clear and unambiguous. A will is not valid unless, at its end, it is signed by the testator or by some other person in his or her presence and by his or her direction [FN3]. Do Ontario courts have discretion to dispense with the formal requirements imposed by the SLRA ? Several Ontario cases suggest the answer may be yes.

In Sisson v. Park Street Baptist Church [FN 4], the Court upheld a will where two witnesses were present when the testator executed the will, but only one witness signed the will. It is important to note that in Sisson the application was not opposed and the witness that had not signed had failed to do so inadvertently. In Malichen Estate [FN 5] a husband and wife inadvertently executed each other’s wills. The Court upheld both wills. Before jumping to any conclusions that these cases are reflective of a trend for Ontario courts to recognize substantial compliance it is important to note that in both these cases the errors were inadvertent. Moreover, many believe these cases were decided incorrectly. O’Flynn J. in Sills et al. v. Daley reviewed Sisson, Malichen and declined to follow them. Instead, he followed Hindmarsh v. Charlton, Ellis v Turner, Bolton v Tartaglia and Re Murphy Estate.

In paragraph 40 of Sisson v. Park Street Baptist Church [FN 6], Justice Murphy of the Ontario Court of Justice stated, “that the absence of legislation on point should not stop the court from developing the common law where, in circumstances like this, there has been substantial compliance, given that the dangers which two witnesses are to guard against does not exist here.” Justice Murphy’s judicial activism on this issue stands in stark contrast to Justice Cullity’s approach in Etorre [FN 7] where in response to a submission seeking substantial compliance His Honour stated, “….I would be reluctant to apply the principle of substantial compliance in the absence of a legislative mandate, or its endorsement by an appellate court.”[FN 8] It seems that most other cases in Ontario adopt Justice Cullity’s approach [FN 9]. From Justice Cullity’s perspective courts must comply with the directions of the legislature and are not at liberty to change the law introducing uncertainty. As the court stated in Hindmarsh v Charlton [FN 9a] “…we must obey the directions of the legislature, and are not at liberty to introduce nice distinctions which may bring great uncertainty and confusion”

When considering the issues in this debate it is important to remember that the SLRA. provides certain instances where a testamentary disposition is valid without compliance with the formalities of execution. These include:

Holograph wills which are wills wholly in the testator’s writing, and signed by the testator without the necessity of subscribing witnesses [FN 10];
Wills prepared by member of forces on active duty [FN 11]. Wills prepared by members of the forces, such as the Canadian Forces, on active duty do not need to be witnessed; and
Gifts Mortis Causa [FN 12];

Hillary Laidlaw’s article, “Sills v Daley and the doctrine of substantial compliance: Is close enough good enough?”[FN 13] provides a very interesting perspective on this debate. She quotes John Langbeins’ article [FN 14], in support of substantial compliance. Lanngbein asserts, “The rule of literal compliance… is a snare for the ignorant and the ill-advised, a needless hangover from a time when the law of proof was in its infancy”.

It is clear that the logic of the “substantial compliance” argument has impacted on the Canadian legal landscape. A number of provinces have enacted legislation specifically giving judges the discretion to dispense with the formalities of execution, as long as the document in question substantially complies with the formalities of execution required by its local provincial legislation and is in accordance with the testator’s wishes. Examples of such legislation include the Saskatchewan Wills Act [FN15], Manitoba Wills Act [FN16], Nova Scotia [FN17] and soon British Colombia [FN18]. Ontario has not amended its legislation to provide for substantial compliance.

Right now, in Ontario, there remains a level of uncertainty because certain judges have appeared to step outside what seems to be the clear intent of the governing legislation. This issue will be resolved only when either Ontario’s legislature or the Ontario Court of Appeal or legislature eventually deal with the issue.

Our short review of the law should not be taken as legal advice. Based on our experience in dealing with these cases, they often turn on their specific facts. If the reader believes this topic to be relevant to a legal matter in which they are involved, nothing replaces retaining a competent lawyer who will do a thorough analysis of the law and the fact situation to provide proper advice.

The authors are Charles B. Wagner and Liliana Ferreira. Liliana is an associate and Charles is certified by the Law Society of Upper Canada as a specialist in Estates &. Trusts Law and is a partner and at Wagner Sidlofsky LLP. This Toronto Law office is a boutique litigation firm whose practice is focused on estate, commercial and tax litigation.

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FN 1. In Ontario, almost all the cases that address this issue stand for the proposition that full compliance with the formalities of execution is required for a will to be valid. The two exceptions are Sisson v Park Street Baptist Church (1999), 24 E.T.R. (2d) (Ont. Gen Div.) [Sisson] and Malichan Estate 6 E.T.R. (2d) 217, (Ont. Gen. Div.).

FN 2. Please See the Alberta Law Reform Institute, “Wills and the Legal Effects of Changes Circumstances” Final Report No.98 August 10, 2010 found at http://www.law.ualberta.ca/alri/docs/fr098.pdf Alberta Law Reform Institute – Wills: Non-Compliance with Formalities, Formal Report No. 84 June 2000. Alberta Law Reform Institute, “Wills: Non-Compliance With Formalities. December 1999 found at http://www.law.ualberta.ca/alri/docs/cm008.pdf ; Estate Litigation basics – 2010 Update CLE BC found at http://www.cle.bc.ca/PracticePoints/WILL/11-ProbateActions.pdf . See Hillary Laidlaw’s article, “Sills v Daley and the doctrine of substantial compliance: Is close enough good enough?” found at http://www.stepjournal.org/pdf/TQR2004i4p6.pdf .

FN 3. Brian A. Schnurr, Estate Litigation, 2nd ed., chapter 18.13; Papageorgiou v. Walstaff Estate, [2008] 2620, 42 E.T.R. (3d) (S.C.J.).

FN 4. Sisson.

FN 5. 6 E.T.R. (2d) 217, (Ont. Gen. Div.).

FN 6. Sisson.

FN 7. Ettorre Estate, Re (2004), 2004 CarswellOnt 3618, 11 E.T.R. (3d) 208 (Ont. S.C.J.) [Etorre].

FN 8. See paragraph 37 of Etorre and Hidmarsh v. Charlton (1861) H.L. Cas. 160.

FN9. See Sills v. Daley (2002), 3 E.T.R. (3d) 297 (S.C.J.) and Papageorgiou v. Walstaff Estate, [2008] 2620, 42 E.T.R. (3d) (S.C.J.).

FN 9a. Hindmarsh v. Charlton (1861), 8 H.L Cas. 160 at 166-167. For more on the issue of judicial activism in Canada I refer the reader to “Remarks of the Right Honourable Beverley McLachlin, P.C.” which can be found at http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm04-11-12-eng.asp . In her address she tries to address the following question, “What then of the accusation that courts have gone beyond their proper role? The charge is made that activist judges – politicians cloaked in judicial robes – have gone beyond impartial judging to advocate for special causes and achieve particular political goals, and that this is undemocratic.”

FN 10. Section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S.26.

FN 11. Succession Law Reform Act, R.S.O. 1990, c. S.26. , sections 5 and 6;

FN 12. Section 72(1)(a) the Succession Law Reform Act, R.S.O. 1990, c. S.26;

FN 13. See pdf copy of the article at http://www.stepjournal.org/pdf/TQR2004i4p6.pdf ;

FN 14. John H. Langbein “ Substantial Compliance with the Wills Act” (1975) 88 Harv. L. Rev. 489;

FN 15. The Wills Act, Chapter W-12.1, 1996, section 37.

FN 16. The Wills Act, C.C.S.M., c. W150, section 23.

FN17. Wills Act, R.S.N.S., 1989, c. 505, section 8A

FN18. Wills, Estates and Succession Act, S.B.C. 2009 c. 13 (Bill 4) (not yet in force), section 58(3)

Dependant’s Relief, Support and Gifts Mortis Causa

August 8, 2012 by Charles Wagner

Suppose Jane knew she was dying and gave the keys to her cottage to her favourite niece. Jane’s lawyer transferred title of the cottage to the niece. After Jane’s death, her husband, Mark started a law suit against the estate for support. He claimed to be a dependant and sought to have the capital value of the cottage deemed to be part of the net estate for purposes of ascertaining the value of estate. His lawyers claimed that the gift was invalid. Let’s take a moment to review Mark’s claim.

In his seminal text, Waters’ Law of Trusts in Canada, 3^rd Edition, Professor Waters states,

“For a gift mortis causa to arise there are three requirements: 1. an intention to give immediately, but subject to the condition that absolute title shall vest in the donee only on the donor’s death; 2. Delivery in the appropriate form, though in this case a chose in action can be given by delivery of the document by which it is represented, and; 3. a contemplation of death at the time of the intent and delivery.”[FN 1].

Spouses and children who are disinherited often commence applications for dependant’s relief under Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26. Even if a party qualifies as a dependant, it is important to ensure that there is sufficient assets in the estate to fund support. To that end, section 72 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 includes assets which ordinarily are normally excluded to fund that support. One such asset is a “gift mortis causa”.

The first question Mark must ask is whether the “gift” was just a gift or was it a gift mortis causa. It’s an important distinction because, except under certain circumstances, Jane is allowed to give her belongings away during her lifetime. A regular gift is not considered to be a section 72 asset. Let’s see how the case law understands the meaning of “gift mortis causa”. The explanation of gifts mortis causa dates back to the late 1800s. In Cain v. Moon [FN2], the court provided the classic definition. The court stated:

“It is…conceded that for an effectual donatio mortis causa three things must combine: first, the gift or donation must have been made in contemplation, though not necessarily in expectation, of death; secondly, there must have been delivery to the donee of the subject-matter of the gift; and, thirdly, the gift must be made under such circumstances shewing that it is to take effect only if the death of the donor follows…[FN3]“

Although there have been very few Canadian decisions which expand upon this definition, the Court of Appeal has provided some guidance. Whether a donation is made in ‘contemplation, though not necessarily in expectation of death’ can be hard to identify. The Court of Appeal has stated that the donor must be in extremis at the time of making the gift [FN 4]. Essentially, a person must be beyond the hope of recovery and near death to be in extremis. In our case, Jane knew she was dying. She knew she had no hope of recovery and was near death, so the first part of the test was met.

The second element of the test relates to the laws of gifts; more specifically, there must either be actual or constructive delivery of the gift by the donor. For example, if the donor handed a Picasso to the donee, that would constitute actual delivery. An example of constructive delivery, on the other hand, would be the donor handing the donee keys to his Ferrari (as opposed to the Ferrari itself). In our case, not only did Jane give her niece the keys to the cottage – she transferred title. The second prong of the test has been met.

Finally, and perhaps most challenging, is the third element. This part of the test states that the gift can only take effect if the death of the donor follows the gift having been made. Bayoff Estate [FN 5] is an interesting case on point. In that case, the deceased was diagnosed with cancer and his demise was imminent. The keys to a safety deposit box were given to the donee. The first two elements of the test for gifts mortis causa were easily fulfilled. However, the court had to delve into the difficulties of the third prong of the test. The court noted that the deceased had not indicated that the gift was conditional on death in the required sense. Bayoff did not, either by words or by action, suggest that the gift was to take effect only if he died. The court also noted that the gift was made during the donor’s lifetime, but title would not vest until the donor died. In its conclusion, the court stated:

Bayoff did not, either by words or actions, suggest that the gift was to take effect only if he died. He had just finished signing a Will in contemplation of his death. It is likely that any gifts which he intended to take effect on death were included in his Will. The gift of the contents of the safety deposit box, in my opinion, was intended to be a gift inter vivos [FN 6].

In this case, the court focused on the timing that the will was made in its determination of whether the gift was indeed a gift mortis causa. Based on this conclusion, the gift in question was not a “gift mortis causa”. If we apply this test to our fact situation, title to Jane’s cottage was transferred to her niece during Jane’s lifetime. It was intended to take place when the transfer was made – not on Jane’s death. Hence – it is not a gift mortis causa and will not be included as a section 72 asset. Mark , the spouse/dependant, will not be able to treat the capital value of the cottage as part of his wife’s estate for the purpose of funding his dependant’s relief claim. The transfer was just an inter vivos gift [FN 7].

Whether the gift in question will be considered a section 72 asset for the purpose of dependant’s support under the Succession Law Reform Act, R.S.O. 1990, c. S.26 is not a simple issue. Our short review of the law should not be taken as legal advice. Based on our experience in dealing with these cases, they often turn on their specific facts. If the reader believes this topic to be relevant to a legal matter in which they are involved, nothing replaces retaining a competent lawyer who will do a thorough analysis of the law and the fact situation to provide proper advice.

The authors are Charles B. Wagner and Joanna Lindenberg. Joanna is an associate and Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN 1. Waters’ Law of Trusts in Canada, 3rd Ed., 6 — Constituting or Setting up the Trust, 6.XI — Exceptional Modes whereby the Trust Becomes Completely Constituted [Waters]

FN 2. [1896] 2 Q.B. 283 at 286.

FN 3. Ibid.

FN 4. Thompson v. Mehan [1958] O.R. 357.

FN 5. Re Bayoff Estate S.K.Q.B. 23. [Bayoff].

FN 6. Bayoff, supra note 4 at 10.

FN 7. See Waters whose explanation on this issue is informative. He states, “It should be recalled that for a gift inter vivos to be valid at common law there must be an intention to give immediately, and a deed of gift or actual delivery. Delivery passes the donor’s dominion over the property to the donee, and must therefore be in the appropriate form to pass the full title in the property in question. For a gift mortis causa to arise there are three requirements: 1. an intention to give immediately, but subject to the condition that absolute title shall vest in the donee only on the donor’s death……”

What is a Resulting Trust

August 4, 2012 by Charles Wagner

“I don’t care who paid for the property – it’s in my name.” But that’s the middle of the story – let’s start at the beginning.

Situations arise where legal title may be in one person’s name , but the courts presume there was a decision to create a trust so that the equitable or beneficial ownership really belongs to another. Let’s take a look at the recent British Colombia Supreme Court case of Borkenhagen v. Kessler (FN 1). It is a worthwhile read for those interested in area of estates and trusts because it reviews the basic tenets of resulting and constructive trusts.

Mr. and Mrs. Borkenhagen purchased a rental property which they agreed to rent to Mr. Borkenhagen’s elderly aunt, Mrs. Kessler. The terms of the agreement were that the aunt would pay a modest rent, approximately equivalent to the rent that she was paying in her previous apartment, and the aunt could remain at the rental property for as long as she liked. Prior to the purchase of the rental property, it was discovered that the bylaws and strata had a restriction requiring anyone who lived in the unit to be an owner and over the age of 55. Neither of the plaintiffs was over the age of 55 and as such the aunt was the only one that could satisfy the requirements for ownership. It was decided that all three parties would go on title to the property as joint owners. The relationship between the parties soured, the aunt severed the joint tenancy and asserted that she was the legal and beneficial owner of 1/3 of the rental property. The plaintiffs on the other hand, sought a declaration that they were the sole and legal beneficial owners of the property.

The parties each relied on Kerr v. Baranow (FN 2), which dealt with the issue of unjust enrichment and the “common intention” resulting trust. A resulting trust is created when title to a property is in the name of a party that did not provide any value for the property, and that party is then required to return the property to the true owner (FN 3). The Court determined that the focus of analysis with respect to a resulting trust is the actual intention of the transferor, in this case, the plaintiffs. On the review of the evidence, the Court found that the plaintiffs’ intent was that their aunt would occupy the rental unit as a renter and not as an owner. The aunt did not contribute to the purchase price of the rental property and did not assume any of the normal obligations associated with ownership. The purpose of the aunt’s title was simply to satisfy the strata requirements. The Court found that in this instance, there had been a gratuitous transfer and the presumption of a resulting trust had not been rebutted. As such, the Court found that the aunt held her 1/3 interest in trust for the plaintiffs, reaffirming that the concept of a resulting trust stems from the idea that people make bargains – not gifts.

The Court arrived at the same result when applying the principles of unjust enrichment and constructive trusts. A constructive trust is imposed when there has been unjust enrichment, regardless of the intention of the parties. Unjust enrichment occurs when there has been (1) an enrichment to the defendant; (2) a corresponding deprivation to the plaintiffs; and (3) there is an absence of any juristic reason for the enrichment. The Court found a constructive trust in favour of the plaintiffs based on the fact that the plaintiffs had paid all of the purchase money, and that the aunt did not have any obligations that an owner would normally have, such as paying property taxes. Therefore the aunt would be unjustly enriched if she was allowed to retain her 1/3 interest in the property. The Court did find that there was an agreement between the parties which permitted the aunt to remain at the property until she wished to leave, but it did not amount to a juristic reason for the enrichment nor the defendant’s acquisition of title to the property.

Every situation is fact specific and you might think that your facts resemble this case enough to jump to a legal conclusion. That would be a mistake. This short review of the law is not meant to be legal advice. In our experience dealing with these cases, the Court’s decisions turn on the specific facts. If the reader has a legal question dealing with a similar problem the reader would be well advised to seek out competent legal counsel to determine the best course of action.

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FN1 2012 BCSC 467I

FN2 2011 SCC 10

FN 3 Pecore v. Pecore, [2007] 1 S.C.R. 795. The Supreme Court of Canada defined a resulting trust as follows: “A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner. While the trustee almost always has the legal title, in exceptional circumstances it is also possible that the trustee has equitable title.” Pecore is the seminal case that deals with the presumption of a resulting trust that arises when children hold joint accounts with their elderly parents. The presumption is that upon the parent’s demise the money does not pass by right of survivorship to the child – rather it is held in a resulting trust for the estate.

Will an Ontario court vary a will when a parent disinherits an adult child?

May 22, 2012 by Charles Wagner

As regular readers of this blog undoubtedly know there is an upcoming seminar on June 5, 2012. For this column, I want to focus on one aspect of the seminar that deals with the moral obligation of parents in their testamentary planning to include children as beneficiaries.

At common law the proposition that a testator has testamentary freedom is foundational. Yet over time, Ontario’s courts and legislature have recognized that a testator has certain obligations that may trump that freedom. For example, the courts have used legal mechanisms like constructive trusts to protect disinherited spouses. The legislature has also passed laws that provide disinherited spouses with a division of net family property, as well as dependants, like children and common law spouses, with rights to receive support if they were not adequately provided for in the will. A question this seminar is raising is where to draw that line on the restriction of testamentary freedom. Will an Ontario court vary a will when a parent disinherits an adult child? The courts in British Columbia have.

In Tataryn v. Tataryn Estate 1994 CanLII 51 (S.C.C.), [1994] 2 S.C.R. 807, a British Columbia case, the court stated that a parent has a moral duty act like a judicious parent and give a proper share of the estate to his or her spouse and children. In the Court’s view, this obligation is based on the prevailing societal, legal and moral norms. The court noted that the moral claims of adult children are not as strong as dependants, but if the estate is large enough the court can vary the will and provide for the disinherited adult child who is not a dependant. The Ontario Court of Appeal, in Cummings 2004 CanLII 9339 (ON C.A.) indicated that statutes in British Columbia and Ontario are similar enough that the principles of Tataryn apply to Ontario. So let’s review the facts of the case in our seminar and see how an Ontario court might rule.

In the fictional scenario before the Moot Court, the elder Mr. Shapiro had two children. In his will, he divided his estate equally between them, but in order to inherit, each child was required to marry a Jewish spouse. In the Moot Court, the executor and the daughter are arguing that Mr. Shapiro’s will is valid and should not be changed. The son, who chose to marry outside the faith, is arguing the opposite.

Kimberly Whaley, counsel for the disinherited son, will be arguing that the principles of Tataryn have been accepted by Ontario’s Court of Appeal and accordingly the Moot Court should vary Mr. Shapiro’s will and give the disinherited son his half of the estate. She will point to the Ontario case of Perilli v. Foley Estate where the judge said that in determining how much to award a dependant who was disinherited, the court should not just look to need, but also consider the deceased’s moral duty to the dependant. Clearly the decisions in British Columbia are having some impact. Ms. Whaley will be arguing that, given that Ontario’s Court of Appeal has adopted the principles of Tataryn, the court should vary a will where a parent has not complied with his moral duty to act like a judicious parent has and disinherited a son who conducted himself in a way that is acceptable to the majority of Canadians.

Kelly Charlebois will be arguing that Ontario law is different from that of British Columbia. As counsel for the executor and daughter, she will be pointing out that to date no Ontario court has understood Cummings to mean that the moral claim of a disinherited adult non-dependent child is legally enforceable. Ontario cherishes the principle of testamentary freedom, as it has for centuries, and that is why both the statute and the court decisions in this Province have never adopted the law of British Columbia.

The event will take place on June 5, 2012, at Shaarei Shomayim Synagogue, 470 Glencairn Ave., Toronto, ON M5N 1V8. Registration is at 7:30 a.m. and the Moot Court will begin at 8:00 a.m. The event is open to lawyers and accountants. Those lawyers and/or accountants interested in attending should contact Anita Bromberg, B’nai Brith Canada, at (416) 633-6224 or at abromberg@bnaibrith.ca.

Cross Border Issues – Israel and Canada

February 24, 2012 by Charles Wagner

Ontario lawyers are increasingly establishing strategic alliances with Israeli attorneys to better serve their clients. Why? There are lots of reasons. Enforcement of Israeli court orders in Ontario, increased trade between the countries requiring cooperation between corporate and tax counsel, and families with members in both jurisdictions requiring cooperation in Family law and estate disputes.

Take this scenario for example – Stella lives with her son in her Toronto home. She bought an apartment in Jerusalem to be close to her daughter. She lives ½ the year in her Toronto home to be close to her son and ½ the year in Jerusalem to be close to her daughter. In her will Stella appointed her two children as executors and divided her estate equally between them. Simple – yes? Not really.

Unless proper steps were taken in her estate planning there could be adverse tax consequences that could have otherwise been planned for and perhaps avoided to achieve her goals. If Stella is determined to be a Canadian resident, the Canadian government will tax her worldwide income and assets, including the Israeli property. If her executor is a Canadian resident, then her estate will be deemed to be resident in Canada and the executor will be required to remit withholding taxes to Canada in respect of any amounts paid or property transferred to a beneficiary living outside of Canada. If Stella is determined to be an Israeli resident, then her executor must take into account the withholding tax payable on any transfer of the Canadian property. If she is determined to be an Israeli resident, but her executor is a Canadian resident, the estate will immigrate back to Canada for Canadian tax purposes.

Now let’s talk about the Israeli tax issues. If, for the purposes of Israeli tax law, Stella lives in Jerusalem, then Israeli Tax Authorities (ITA) require her to report her foreign assets and income. The ITA will impose penalties and interest charges for her failure to do so. Moreover, the ITA will consider Stella’s worldwide income taxable subject to relevant tax treaties. If Stella has not addressed these issues during her lifetime than that means this responsibility falls to her executors. Stella’s children will likely have to deal with her failure to report her assets and income to the ITA.

When Canadian and Israeli estate and tax issues are explained to executors the reaction is usually the same – Gevalt!

The above is a fictional scenario. While my office only litigates, over the last several years I have been consulted by people like Stella’s children because of my experience in wills and trusts and my network of Israeli attorneys and Canadian lawyers whose practices deal with these issues. These lawyers are often called upon to address problems that arise when individuals did not take into account the different tax ramifications of multiple residences, beneficiaries and executors in different jurisdictions. One such lawyer who has assisted me on occasion is Gilead Sher.

Mr. Sher is the senior partner of Gilead Sher & Co. Law Offices. He is a household name in Israel and regardless of where you sit on the Israeli political spectrum he is regarded as a patriot. You may recognize him as the former chief of staff to former Prime Minister Ehud Barak or for his role as chief peace negotiator for Israel during the Camp David Summit in 2001 and the Taba talks in 2001. On the last file I dealt with Gilead’s tax partner, Yehuda Mulaem, and my Canadian Tax Counsel Leigh Somerville Taylor. Together we successfully saved our client a lot of money and aggravation because both Leigh and Yehuda knew the law in their respective jurisdictions and were experienced in cross border issues.

So what’s the bottom line? What should Stella have done? I can attest that it’s better to retain the competent professionals in the first place and thereby avoid these issues later on.

This short review of the law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

End Of Life Decisions – Do Doctors Have The Right To Decide?

November 11, 2011 by Charles Wagner

Mr. Rasouli was in a permanent vegetative state. Fed through a tube inserted into his stomach, he was only being kept alive by a mechanical ventilator. Believing there was no realistic hope of recovery the doctors wanted to remove his life support. His family said no. Who has the right to make these decisions?

The doctors suggested that they do. The family disagreed.

As Shia Muslims, Mr. Rasouli’s family believed that as long as a person was alive everything should be done to prevent death. Accordingly, they opposed the doctors’ plan to withdraw the mechanical ventilation.

This case was first heard by Madam Justice Himel of the Ontario Superior Court of Justice (FN1). It was appealed to the Ontario Court of Appeal (FN2). Now leave is being sought to have the matter heard by the Supreme Court of Canada. Thus far, the courts have sided with Mr. Rasouli’s family. This case depends on the definition of “treatment” in the Ontario Health Care Consent Act (FN3) (the “Act”) and the steps set out by the Act to resolve disagreements between doctors and substitute decision makers about treatment plans. Let’s review the law.

The Act provides that medical treatment shall not be administered without the consent of the patient. If the patient is not capable of giving consent, the treatment must be approved by the person appointed as the patient’s substitute decision-maker. Sounds simple? It’s not.

Key to the Court’s review is the legal meaning of the word “treatment”(FN4). Also fundamental to the decision making process are the real wishes of the patient. The substitute decision-maker’s wishes were unimportant – it’s what the patient wanted to do that is key.

The doctors argued that, in this context, “treatment” as defined in the Act does not include the withholding or withdrawal of treatment that had no medical value to the patient. Hence, the withdrawal of such treatment could be done without the patient’s consent. The doctors argued that the Act merely enshrined the common law which recognized a doctor’s right to withhold or withdraw treatment. The doctors further argued that according to the common law they were not permitted to continue “inhumane” treatment even if the patient or his substitute decision-maker demanded it. What did they mean by “inhumane”? In my review of similar cases, and paraphrasing some of the arguments, it seems that in this situation the doctors may feel that continuing unnecessary treatment diminishes the quality of life of the patient and exposes him to gratuitous discomfort and indignity. It is the extension of death – not life and they argue is inhumane (FN5).

There was some sympathy at the Ontario Court of Appeal for this position. While they dismissed the doctors’ appeal the Court recognized that their position was serious and warranted careful consideration.

Let’s examine why they sided with the Rasouli family. There are a number of definitions relating to “treatment” in the Act and both the Superior Court of Justice and the Court of Appeal pointed out that the definition of a “plan of treatment” involved “… the withholding or withdrawal of treatment in light of the person’s current health condition”. Moreover, given that Mr. Rasouli’s wishes were not known, the Act allowed the doctors to apply to the Health Care Consent and Capacity Board to disregard the substitute decision-maker’s decision to maintain life support. At issue before the Board would be what was in the best interests of the patient.

The court decisions will likely only delay the argument as to who has the right to decide. Both the doctors and the Rasouli Family have a right to appeal to the Ontario Superior Court of Justice the decision of the Board on questions of law or fact. On an appeal, the court is authorized to exercise all the powers of the Board, to substitute its opinion for that of a physician, a substitute decision-maker or the Board or to refer the matter back for a rehearing. (FN6)

Why is this case so important to the Jewish community?

End of life issues have halachic implications. Do we want a stranger whose views on end of life issues may not be in accordance with halacha to be the decision maker? It is for this reason that both the Rabbinical Counsel of America (RCA) and Agudath Israel have drafted Halachic Living Wills. I have written extensively on this topic and refer the reader to http://bit.ly/halivwill This article canvasses the issues, reviews some relevant case and provide links to both the RCA and Agudath Israel precedents (FN7). I caution the reader that these precedents were drafted for American jurisdictions. Accordingly, anyone contemplating their use should review the halachic living will precedents with a competent lawyer in your jurisdiction to ensure they would be enforceable here.

There is another issue relevant to all Canadians regardless of their religious affiliations. Our health care system is in crisis. Many say that it is underfunded and mismanaged. At the initial hearing before Madam Justice Himel the hospital, separate and apart from the doctors, brought up the issue of limited resources. At the hearing, their lawyer argued that hospitals could be overwhelmed with individuals with no hope of recovery remaining on life support for extended periods of time and thereby deny those who can be helped access to scarce resources. This issue was not argued at the Court of Appeal, but it is an issue of importance. Is the lack of funding a driving issue in this debate?

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN1. Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre 2011 CarswellOnt 1650, 2011 ONSC 1500, 105 O.R. (3d) 761, 231 C.R.R. (2d) 26. An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500 (CanLII).

FN 2. Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre 2011 ONCA 482. An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482.

FN3. See online version of the legislation provide by e-laws which can be found at Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A

FN4. The Ontario Court of Appeal’s decision at paragraphs 19-24 review the relevant provisions with respect to the use of the term “treatment” under the Act. See sections 1, 2, 10, and 21. The Court of Appeal’s analysis is set out below.

20] Of those provisions, the operation of s. 21 of the Act warrants brief explanation. It sets out the principles that a substitute decision-maker must follow in deciding whether to give or refuse consent to a proposed treatment on behalf of an incapable person.

[21] Under s. 21(1)1., if the substitute decision-maker knows of a wish, applicable to the circumstances, expressed by the incapable person while he or she was capable, after attaining age 16, then the substitute decision-maker must abide by that wish and give or refuse consent in accordance with it. (Ms. Salasel accepts that that provision has no application in her husband’s case).

[22] Section 21(1)2. applies where the substitute decision-maker is unaware of any such wish (as is the case here) or where compliance with such a wish proves impossible. Under those circumstances, a substitute decision-maker must act “in the incapable person’s best interests” in deciding whether to give or refuse consent to a proposed treatment.

[23] Section 21(2) of the Act sets out various factors that a substitute decision-maker must take into account in deciding whether the proposed treatment is or is not in the incapable person’s best interests. Broadly speaking, those factors fall under two heads, one relating to the values, beliefs and wishes of the incapable person (s. 21(2)(a) and (b)), the other to the nature and medical value of the treatment proposed in the circumstances (s. 21(2)(c)).

FN5. Please see Justice Cullity’s decision Scardoni v. Hawryluck, 2004 CanLII 34326 (ON SC) and in particular paragraphs 39 -50 where he reviews the concept of well being under section 21(2) (c) of the Act. In this court case a decision of the Board was appealed to the court. The Board directed the family to consent to the removal of their mother from a ventilator. The family argued that by virtue of a power of attorney for personal care they were appointed as substitute decisions makers. While the decision of the Board was overturned on the issue of “Best Interests” and “Quality of Life” Justice Cullity agreed with the Boards position when it stated, “We thought “well-being” involved more than mere life itself. The phrase is subjective as used because it was used in conjunction with the word “condition,” which connoted to us a more objective assessment of the status of a person’s illnesses and physical situation. “Well-being” includes considerations such as the person’s dignity and levels of pain.”

FN6. Appeals to the Ontario Superior Court of Justice from decisions of the Board on questions of law or fact are permitted by section 80 of the Act. On an appeal, the Court can substitute its opinion for that of the doctor, the substitute decision-maker and or the Board. Equally important the Court “may receive new or additional evidence as it considers just.”

FN7. See the website provided by the Orthodox Union of Orthodox Rabbis entitled “End of Life Issues – Halachic Resources and Forms”. This is available on line at http://bit.ly/ouresrc and is an invaluable resource. Please note that any precedent used has to be taken to a competent lawyer in your jurisdiction to determine if the forms provided are applicable to the particular client and specific jurisdiction. Questions to be addressed include whether there will compliance with the formalities of execution in the relevant jurisdiction and whether the requirement under the Halachic power of attorneys to consult a rabbi and be bound by his decision constitute a delegation? If it does then is the Power of Attorney is invalid or is it saved by the concept of “protector” as outlined in Waters; Law of Trusts in Canada? I have addressed some of these issues in an article “Are Halachic Powers of Attorney for Personal Care Binding in Ontario?” which can be found at http://bit.ly/halivwill

IS DISINHERITENCE BECAUSE OF SEXUAL ORIENTATION LEGAL?

August 19, 2011 by Charles Wagner

Will a Canadian court vary or set aside a will when a parent disinherits a gay/lesbian child because of his/her sexual orientation? The law may be different depending on the province.

In Canada, the law balances the idea of testamentary independence against public policy concerns. While cherishing testamentary freedom, the law intervenes when it finds provisions in the will offensive to public policy and or equity. In Ontario, this restriction on testamentary freedom has been expressed by laws passed to protect spouses (under Part I of the Family Law Act [FN1]) and dependents (under Parts II and V of the Succession Law Reform Act [FN2]).

Two true stories from British Columbia: In both Patterson v. Lauritsen [FN3] and Peden v. Peden Estate [FN4], a parent disinherited or reduced the inheritance of a child because the parent did not approve of the child’s homosexuality. The Court in each of these cases held that, in today’s society, homosexuality is not a factor that would justify a judicious parent disinheriting or limiting benefits to a child.

Would the same thing happen in Ontario? Maybe – maybe not. In the British Columbia cases, even though the parents had capacity and were not subject to undue influence, their wills were open to challenge on the ground that the parents had disinherited their children without, what the court considered to be, reasonable cause. While the Ontario Court of Appeal has stated that the “moral considerations” underpinning the British Columbia approach apply in Ontario, to my knowledge, there has been no case to date where an Ontario Court has varied a will to benefit a non-dependent disinherited adult child [FN5]. In Ontario, except where a will offends public policy, it is still open to debate whether a capable parent, acting voluntarily, is entitled to disinherit a child - however whimsical, mean-spirited, or controlling such action may seem.

A comment made by an Ontario judge in 1995 is of interest insofar as it suggests where an Ontario court may draw the line. In Fox v. Fox Estate [FN6], a decision of the Ontario Court of Appeal, the father named his wife the executrix under his will. The income was to be used for the grandchildren with the capital for the son. The will also gave the mother an unfettered discretion to encroach on the capital of the estate for the benefit of her son’s children. She took all the capital, eliminating her son’s inheritance because he was involved with a non-Jew. The judge commented, “….in response to a query from the bench, counsel in this case were not prepared to argue that any court would today uphold a condition in a will which provides that a beneficiary is to be disinherited if he or she marries outside of a particular religious faith”. The Court viewed the mother’s behaviour as being mala fides and contrary to public policy.

Testators that ignore the changing winds of public policy do so at their own peril. In M v. H, [FN7] the Supreme Court of Canada compelled Ontario to change the definition of “spouse” as set out in the support provisions of the Family Law Act. Prior to that case, common-law heterosexual couples were included in the definition of spouse, but gay and lesbian couples were not. The Supreme Court of Canada ruled that, for the purposes of support under the Family Law Act, a spouse includes “…either of two persons …”. The court ruled that limiting the definition of “spouse” to heterosexual couples, for the purposes of support, was discriminatory and not justifiable. In Canada today same-sex marriages are legal. It is therefore entirely possible that an Ontario court would set aside a provision in a will that disinherited someone because of his/her sexual orientation, on the grounds that such disinheritance offended public policy.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation. The author gratefully acknowledges the assistance of Michelle Kotzer in the preparation of this article.

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FN1. Family Law Act, R.S.O. 1990, c. F.3

FN 2. Succession Law Reform Act, R.S.O. 1990, c. S.26

FN3. Patterson v Lauritsen (1984) CarswellBC 381, 58 BCLOR 182, [1984] 6 WWR 329, 17 ETR 316. Available on line at Patterson v. Lauritsen, 1984 CanLII 353 (BC SC)

FN4. Peden v Peden Estate (2006) CarswellBC 2801, 2006 BCSC 1713, [2007] WDFL 1837. Available on line at Peden v. Peden, Smith et al., 2006 BCSC 1713 (CanLII)

FN5. See Justice Cullity’s 1998 decision of Banton v. Banton, 1998 CanLII 14926 (ON SC) and in particular paragraph 36 where he states, “It is hardly necessary to say that the principle of freedom of testamentary disposition is in the background to the issues relating to the validity of the wills of December 21, 1994 and May 4, 1995. If George Banton had capacity and was not subject to undue influence at the time of the execution of one of those wills, its validity and effect are not open to challenge on the ground that he thereby disinherited his children. In this jurisdiction, unlike others in Canada and elsewhere, unless the children are dependants, a capable parent acting voluntarily, is entitled to do this however mean and ungrateful it may seem, or how selfish the motive; hence the focus in this case, as in so many others, on testamentary capacity and undue influence.”

Compare this with the decision of the Court of appeal in Cummings v. Cummings CanLII 9339 (ON CA). At paragraph 40, Blair J. A. states, “[40] In my view these questions have been resolved by the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate 1994 CanLII 51 (S.C.C.), [1994] 2 S.C.R. 807. There, the Court held that a deceased’s moral duty towards his or her dependants is a relevant consideration on a dependants’ relief application, and that judges are not limited to conducting a needs-based economic analysis in determining what disposition to make. In doing so, it rejected the argument that the “judicious father and husband” test should be replaced with a needs-based analysis: see para. 23. I see no reason why the principles of Tataryn should not apply equally in Ontario, even though they were enunciated in the context of the British Columbia Wills Variation Act R.S.B.C. 1979, c. 435, in which the language is somewhat different from that of the Succession Law Reform Act.

I also recommend the reader to see Susan J. Woodley’s paper entitled “The (Almost, Possible, Probable) Right of an Adult Child to Receive Support”, presented at the Ontario Bar Association 2009 Institute of Continuing Legal Education.

FN6. Fox v. Fox Estate 1996 CanLII 779 (ON C.A.), (1996), 28 O.R. (3d) 496, 10 E.T.R. (2d) 229 (C.A.),

FN7. M. v. H. [1999] 2 S.C.R. 3. I refer the reader to an aritlce written by Mary C. Hurly entitled “Sexual Orientation and Legal Rights”. The article appears on the Parliament of Canada Website and can be found at Sexual Orientation and Legal Rights (PRB 08-49E) . When considering the impact of the decision and how it reflects on public policy in Canada her conclusion speaks to how a court may view the public policy issue. “Judicial and legislative reforms, particularly since the M. v. H. decision in 1999, have effected a significant shift in Canadian society with respect to recognition of the legal status and claims of same-sex conjugal couples. The watershed nature of this shift is illustrated, most notably, by federal legislation sanctioning same-sex marriage.

Opponents of these reforms continue to argue that the extension of same-sex rights in general, and same-sex marriage in particular, undermine the traditional family and family values. At the same time, some gay and lesbian couples (like some heterosexual couples) do not want either the legal obligations or the benefits that flow from spousal status or marriage. As the 2002 report of the former Law Commission of Canada and other indicators suggest, the question of whether the matter of entitlements based on the marital or conjugal nature of a partnership should be re-examined remains open.”

Unjust Enrichment, Equity and your Mother in Law

August 3, 2011 by Charles Wagner | 2 comments

The average person goes to a lawyer because they just feel they were treated unfairly. I read a case recently and thought long and hard about how the plaintiff, Mary, must have felt. Her lawyer could not go to court and just say Mary was treated inappropriately. We lawyers must apply the facts to legal doctrines and theories. We rely on older cases to show that in similar circumstances the courts have granted damages to our clients. So let’s go through the facts of this case, see why Mary felt she was treated unjustly, and look how the courts applied the law to her situation.

Mary, her husband Franco and their children lived on a farm owned by Mary’s mother in law. They paid no rent. Franco ran a construction company and used that company to renovate his mother’s farm. He never charged his mother a penny for what amounted to over $200,000.00 worth of work. Instead, for between 30% and 50% of the cost of the improvements Franco billed his company’s other clients.

Franco died. Six months later Mary and her children left the farm. The mother sold the farm for $880,000 and gave $200,000 to her daughter. Mary and her children got nothing. Does that sound unfair to you? It did to Mary. Were Franco’s children also not entitled? Didn’t Franco add value to the Property? Were his children not entitled to the benefit of their father’s work? The matter went to trial and was appealed (FN1). One can surely understand how Mary felt cheated. Let’s see how the courts dealt with her complaint in the legal context.

Mary’s lawyer argued that Franco’s estate had a quantum meruit claim for unjust enrichment(FN2). Essentially, this Latin phrase describes a legal doctrine standing for the proposition that a person should be compensated for services or goods provided even if there was no legally enforceable contract. Based on seminal cases such as Peter v. Beblow, 1993 CanLII 126 (S.C.C.), [1993] 1 S.C.R. 980 and Garland v. Consumers’ Gas Co., 2004 SCC 25 (CanLII), [2004] 1 S.C.R. 629 Mary’s lawyer argued that she should be compensated because Franco’s mother was enriched by virtue of the work done by Franco, that Franco suffered a corresponding deprivation for what he could have charged her and there was no juristic (legal) reason for Franco’s mother to get that work done for free. The other side disagreed.

While the trial judge and Ontario Court of Appeal agreed that Franco’s mother was enriched they did not believe that he suffered a corresponding deprivation. In other words – he did not lose anything. Firstly – it was his company not Franco that did the work. Secondly the company was paid for the work already, albeit by other customers. How could Franco have been deprived of compensation for his work if he was already paid for it by his other customers? Finally – when addressing the third part of this test, that being the absence of a juristic reason for Franco’s mother to retain the benefit, the court pointed out that it was just and fair that the mother keep the benefits without paying for it. After all, Franco and Mary lived on the property rent free. They benefited from the renovations and most importantly they never indicated to Franco’s mother that there was any expectation at all of compensation for Franco’s work.

Before leaving this case I want to address an interesting side point. Ordinarily, a plaintiff cannot come to court seeking an equitable remedy & compensation for unjust enrichment, if she does not come to court with clean hands. Even though Franco charged his clients for the work done on his mother’s farm the court did not hold that against Mary. Why? Because while improper, those actions were not immediately and necessarily related to the claim (FN3).

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation

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FN 1. The Court of Appeal Decision is accessible on line at http://www.canlii.org/eliisa/highlight.do?text=simonin&language=en&searchTitle=Ontario&path=/en/on/onca/doc/2010/2010onca900/2010onca900.html&searchUrlHash=AAAAAQAHc2ltb25pbgAAAAAAAAE , 2010 ONCA 900 (CanLII) — 2010-12-24 and the trial decision can also be found on line at http://www.canlii.org/eliisa/highlight.do?text=simonin&language=en&searchTitle=Ontario&path=/en/on/onsc/doc/2008/2008canlii58155/2008canlii58155.html&searchUrlHash=AAAAAQAHc2ltb25pbgAAAAAAAAE, 2008 CanLII 58155 (ON SC).

FN 2. On our firm’s website I have provided a case scenario and some of the seminal cases dealing with the doctrine of unjust enrichment. This might assist the reader in dealing with this issue and I refer you to this link http://www.wagnersidlofsky.com/quantum-meruit-claim.php

FN 3. See paragraphs 56 -62 of the trial decision at 2008 CanLII 58155 (ON SC). As Daley J. stated at paragraph 62 “ As such, while the manner in which the renovation costs were paid for through Spancrest may have been improper, it is not immediately and necessarily related to the plaintiff’s claim of unjust enrichment. In the result, I conclude that that arrangement does not bar the plaintiff from making the claim for a remedy based on alleged unjust enrichment.”

Are Promises Enforceable?

June 10, 2011 by Charles Wagner

Lora and Jeffrey started living together. As their 23 month relationship grew stronger Jeffrey promised Lora that when he died Lora would get his RRSPs worth about $1,750,000 as long as they were still living together. Jeffrey insisted that Lora sign a cohabitation agreement before he would keep his promise. Before the agreement was signed Jeffrey died. Was Jeffrey’s promise legally enforceable? At trial Justice Brown of the Ontario Superior Court of Justice (FN1) decided that Lora would get the money. Jeffrey’s estate appealed.

Lora sued the estate on a number of different grounds. I would like to focus on one which the Ontario Court of Appeal (FN2) addressed – was Jeffrey’s promise legally enforceable under the doctrine known proprietary estoppel? Let’s start by defining some terms.

Let’s assume Jeffrey made a promise to Lora. Proprietary estoppel is a legal doctrine which prevents Jeffrey from enforcing his legal rights with respect to property once he made a promise or representation not to do so. This is applied if Lora relied on the representation/promise and would suffer if Jeffrey or his estate enforced his legal rights. The court would force Jeffrey or his estate to keep the promise if it would be palpably unfair to allow him to strictly enforce his legal rights. Proprietary estoppel is an example where courts will look to equitable doctrines to address unconscionable wrongs.

Sometimes courts will use equitable remedies, like proprietary estoppel, to address a situation where the application of strict legal rights would be unfair. Under these circumstances the court may ignore a contract or a testamentary document and provide the plaintiff with a remedy. By applying equitable principals courts will sometimes enforce promises.

The Ontario Court of Appeal in Schwark Estate v . Cutting(FN3) reviewed a number of causes of action and remedies through which a promise may be enforced. In the course of that analysis the Court of Appeal summarized the essential elements of proprietary estoppel as follows:

the owner of land induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit over the owner’s property;
in reliance upon this belief, the claimant acts to his detriment to the knowledge of owner of the land; and
the owner then seeks to take unconscionable advantage of claimant by denying him the right or benefit which he expected to receive.

So what does proprietary estoppel have to do with Lora and Jeffrey’s situation in the Belvedere v. Brittain Estate? Lora’s lawyers raised a number of equitable arguments (FN4) which the court dismissed. The Ontario Court of Appeal dismissed those arguments finding that Jeffrey’s estate was not unjustly enriched by Lora’s contributions and accordingly the trial judged erred in applying the doctrine of constructive trust. At that point the court considered the alternative remedy of proprietary estoppel.

The first issue addressed by the Court was whether this doctrine of enforcing promises relating to land could be used to enforce promises relating to RRSPs. The Ontario Court of Appeal noted that there is some controversy on this point, but it proceeded with the analysis on the assumption that it did apply. (FN5). A key issue in enforcing such a promise is that Lora had to rely on it to her detriment. Seeing that she did not rely on the promise and suffer any loss the court dismissed the proprietary estoppel argument.

So does that mean that promises are not legally enforceable? Maybe. The Ontario Court of Appeal decision makes room for such an argument if it meets the criteria set out in Schwark Estate v . Cutting. In an article published in the Estate and Trusts Quarterly, Ian Hull, a leading estate litigator stated (FN6), “While the doctrine of proprietary estoppel has deep roots in the British courts, the recent developments in the context of estates seem to point to a new and effective remedy available to claimants in the context of estate litigation”.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation

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FN1. Belvedere v. Brittain Estate 2007 CanLII 32666 (ON S.C.), (2007), 45 R.F.L. (6^th) 81. Justice E.R. Browne of the Superior Court declared that Ms Lora Belvedere was entitled to a constructive trust in Mr. Brittain RRSPs at the time of his death, to be satisfied by payment to Ms. Belvedere of $1,750,000.

FN2. Belvedere v. Brittain Estate, 94 O.R. (3d) 655 (2009) OCA . To access the case on line see bit.ly/Belvedere/Brittain

FN3. Schwark Estate v. Cutting, 2010 ONCA 61. To access the case on line see http://bit.ly/Schwark

FN4. Lora’s lawyers argued that the estate of Mr. Brittain was unjustly enriched and that the trial judge was correct in finding a constructive trust on $1,750,000 of the estate assets in favour of Lora. Alternatively, Lora’s lawyers argued that the trial judge should have considered the remedies of a “resulting trust” and or “proprietary estoppel”.

FN5. See paragraph 67 of Belvedere v. Brittain Estate, 94 O.R. (3d) 655 (2009) OCA. To access the case on line see bit.ly/Belvedere/Brittain

FN6. Ian Hull and Suzana Popovic-Montag’s article “Proprietary Estoppel — An Innovative Claim Against the Assets of an Estate can be found in the Estate and Trust Reports, 3^rd series 2009. The cite is 55 E.T.R. (3d) 44.

May 16, 2011 Seminar – Bnai Brith Seminar – “Financial Predators and the Elderly – Banton v Banton.”

May 1, 2011 by Charles Wagner

The Estate and Trusts Group, Lawyers Division Bnai Brith and the adult education committee of Shaarei Shomayim are sponsoring a continuing legal education seminar entitled “Financial Predators and the Elderly – Banton v Banton.”

In this case the 88 year old George Banton fell in love with a 32 year old waitress named Muna. He married Muna and made a new will that disinherited his children. Virtually all contact with his kids stopped. At the time Mr. Banton was depressed, terminally ill, and mentally unwell. On hearing that their father was certified as incapable and that Muna, had withdrawn $10,000 from his account, George’s sons used their power of attorney to transfer George’s money into an irrevocable inter vivos trust under which they and CIBC Trust Corporation would be the trustees. The trust allowed the money to be used for George’s during his life and would go to his children after his death.

When George died his children challenged the new Will and the validity of the marriage to the much younger Muna. She challenged the sons’ creation of the trust. The fact situation in Banton v Banton underscores the risk to the elderly of being victimized by financial predators who look to marry a vulnerable older person as a means to take away their money and disinherit their children. To quote the judge in the Banton case, “I have no doubt at all that this influence was deliberately exerted to enable her to obtain control and, ultimately, the ownership of his assets…. After she consented to marry him, her influence became overwhelming and irresistible. The speed with which she was able to procure a will and a power of attorney in her favour is testimony to this as well as to his weak and vulnerable mental condition. …Thereafter, he was held incommunicado as far as his family were concerned…. I believe George Banton was a mere puppet, when he was not simply a bystander, during the guardianship proceedings.”

These continuing B’nai Brith legal education seminars have been going on for approximately four years. Many members of B’nai Brith are professionals whose practice involves servicing senior citizens and their families. B’nai Brith runs these seminars in order to meet present and future educational needs of our membership’s legal and accounting profession. These seminars were inspired, in part, by legal problems of concern to the Jewish community as well as the community at large.

To educate attendees these seminars feature some of Ontario’s premiere estate litigators. These lawyers will be participating in mock court proceedings based on the fact scenario of Banton v Banton. Prior to the moot court Rachel Blumenfeld, an estate lawyer at Miller Thomson (bit.ly/rblumenfeld), will explain the legal options open to children wanting to protect elderly parents in second marriage situations. Thereafter Rabbi Joe Kanofsky of Shaarei Torah will speak from an ethical pastoral perspective about the obligations and choices to the children, parent and professionals when dealing with this type of scenario. The Rabbi’s presentation can be used by lawyers towards fulfilling part of their mandatory 3 hours of continuing professional development related to professional responsibility, ethics and practice management.

The judge for the moot appeal will be Jordan Atin (http://bit.ly/jordanatin). Archie Rabinowitz (http://bit.ly/arabinowitz) and Kimberly Whaley (http://bit.ly/kwhaley) will be representing the Banton children and Ian Hull (http://bit.ly/ianhull) and Charles B. Wagner (http://bit.ly/cwagner) will be representing the waitress.

Each attendee will receive a binder and a flash drive which will contain papers prepared by the lawyers about different aspects of the case as well as some actual court documents relating to Banton. At the end of the seminar there will be a question and answer session from the panel and the participants.

The seminar will be held Monday, May 16^th, 2011 at Shaarei Shomayim 470 Glencairn Ave ON M5N 1V8. Registration starts at 7:30 am. and the seminar starts at 8:00 a.m. For information or to register, call Hyla Reichmann at (416) 633-6224, ext. 128, or email hreichmann@bnaibrith.ca .

A Trustee Is Not Entitled To Use Trust Property For His Own Benefit

March 29, 2011 by Charles Wagner

Justice Strathy of the Superior Court of Justice ordered that Mr. Zimmerman repay nearly $500,000 in compensation he took as an attorney for property (FN1). The judge also ordered that he personally pay the legal costs of the other side amounting to $284,362.19 (FN2). What happened?

Let me first introduce you to Robert and Signe McMichael. During their lives they collected Canadian art from artists like Tom Thomson and the Group of Seven members. In 1964 they donated their art collection to the province of Ontario and by 1981 the Collection had grown to include more than 2,000 artworks. This Collection is truly a Canadian national treasure. (FN3).

In 2001 Robert and Signe McMichael made mirror wills (FN4). Both husband and wife left everything to each other. Signe’s Will, (like her husband’s) said that if her spouse predeceased her, then when she died, Signe’s assets would be donated to the Collection. Mr. McMichael died in 2003 and his assets were inherited by his wife.

After her husband’s death, Mrs. McMichael signed a power of attorney appointing Mr. Zimmerman as her sole attorney for property. In early 2004 Mr. Zimmerman’s lawyers prepared a trust document appointing Mr. Zimmerman as the trustee. Mr. Zimmerman then transferred virtually all of Mrs. McMichael’s assets including the art collection into the trust so that there was virtually nothing left in her estate.

Under this new trust, Mr. Zimmerman had sole and unfettered discretion to decide which art related organization would receive Signe’s assets years after her death. Effectively, the new trust rendered the Will meaningless. Instead of inheriting everything immediately after Signe’s death, the Collection would get nothing. If the new trust went unchallenged it was totally up to Mr. Zimmerman to decide whether the Collection would receive any of Signe’s assets.

When Mrs. McMichael died in 2007 her niece and husband, the executors under the Will, commenced a legal proceeding. They asked the court to declare that the Power of Attorney and the Trust were void on the ground that Signe lacked capacity. They also wanted Mr. Zimmerman to pass his accounts in a separate proceeding.

The only issue before Justice Strathy was Mr. Zimmerman’s passing of accounts. To pass his accounts Mr. Zimmerman had to show what assets of Signe’s he received and how the money under his control was spent. As an attorney for property it was Mr. Zimmerman’s statutory and common law duty to keep proper accounting records and proof/vouchers to demonstrate that the money spent was for the benefit of Mrs. McMichael. This duty is imposed on trustees because it is a basic fundamental principle of trust law that Mr. Zimmerman, as a trustee, was not entitled to use the trust property for his own personal benefit. If Mr. Zimmerman did use Signe’s assets for his own personal benefit or if he could not account or explain to the court how he spent the money then he would be liable to return it.

When Mr. Zimmerman tried to pass his accounts the fireworks started.

Whatever accounting that was provided was incomplete. Mr. Zimmerman could not or would not provide proper explanations about how he spent the money. The court found that Mr. Zimmerman breached his fiduciary duties and failed to exercise his powers and duties diligently, with honesty and integrity and in good faith, for the incapable person’s benefit. Mr. Zimmerman did not comply with his obligation to keep proper accounts and was not in a position to prove that he administered the trust prudently and honestly. He did not have the accounts ready and was not able to give full information when required.

Mr. Zimmerman infuriated the court because he failed to respond to appropriate objections to his accounts. The judge drew an adverse inference that by failing to respond properly to the questions raised by the Collection and the estate trustees Mr. Zimmerman was guilty of taking the money for himself and would be required to reimburse the estate for those disbursements and expenses (FN5).

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN1. Please see Zimmerman v. McMichael Estate 2010 CarswellOnt 3481, 2010 ONSC 2947, 57 E.T.R. (3d) 101, 103 O.R. (3d) 25 and in particular paragraphs 29 and 88 and 90 for the proposition that a fiduciary may not profit from his role, paragraph 30 for the fiduciary’s duty to account, and paragraphs 35,43 45, 49 and 89.

FN2. Please see the second Zimmerman decision. The first was decided on May 20, 2010 and cited in FN1. The second was decided on October 4, 2010 and can be found as Zimmerman v. Fenwick 2010 CarswellOnt 8372, 2010 ONSC 5452.

FN3. Robert and Signe McMichael founded the Collection,. Some of the history of the Collection, is described in the judgment of the Court of Appeal in McMichael v. Ontario (1997), 36 O.R. (3d) 163, [1997] O.J. No. 4661 (Ont. C.A.), leave to appeal refused, (S.C.C.).. Their website can be found at http://www.mcmichael.com/

FN4. It is important not to confuse the terms “Mirror Wills” and Mutual Wills. Mirror Wills are identical to one another. Mutual Wills creates an agreement which equity enforces that the wills will not be changed. I refer you to the explanation of Histrop, Estate Planning Precedents which excerpts from Canadian Forms of Wills, 4th ed. BY Terence Sheard and the late Rodney Hall, “ Although a will is by its nature revocable, a testator may, by agreement, create equities in his assets that will be enforceable against those who derive title from him (Dufour v. Pereira (1769), 1 Dick. 419; Stone v. Hoskins, [1905] P. 194; 39 Hals., 3rd ed., p. 851; see also Re Hagger, [1930] 2 Ch. 190). The commonest manner in which such equities are created is through the making of joint or mutual wills but the mere fact that two wills are made in identical terms does not of necessity imply any agreement to constitute equitable interests so as to, in effect, make the will of the survivor irrevocable” .

FN5. The finding of an adverse interest is very important with respect to accounting. Under the common law section 32(6) and 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 and under the regulations Accounts and Records of Attorneys and Guardians, O. Reg. 100/96 the attorney for property has a absolute strict duty to in accordance with the regulations, keep accounts of all transactions involving the property of the grantor of the Power of attorney. Justice Strathy, in his judgment, addresses what happens when the attorney fails to keep proper records:

Duty to Account: trustee has an obligation to keep proper accounts. A trustee must keep a complete record of his/her activities and be in a position at all times to prove that he/she administered the trust prudently and honestly. He/she must have the accounts ready and give full information whenever required. (see para 30)

Adverse Inference: An attorney who fails to retain receipts supporting substantial cash withdrawals or expenses charged against the incapable person’s property has not adequately carried out his/her duties and will be held personally liable for the unsubstantiated withdrawals (para 35) It is a basic principle of trust law that a trustee is not entitled to use the trust property for his or her own personal benefit. Trustee has onus to prove disbursements were legitimate. If a trustee cannot account for or explain disbursements or expenses charged against a trust he/she is personally liable to the trust for those disbursements (paragraphs 43 45, 49 and 89).

Where There is Life There is Hope

February 26, 2011 by Charles Wagner

When should hospitals take away a person’s right to make end of life decisions?

This topic is once again in the news as Moe Maraachli and Sana Nader are at odds with the London Health Sciences Centre. The parents want their terminally ill child discharged from the hospital to die at home. The hospital refused. The parents lost at the Health Care Consent Board and lost their appeal in court (FN1). Without commenting on this very sad case it once again raises the issue of who has the right to make life ending decisions for people who are not capable of making those decisions themselves. Should it be the parents of a child or the hospital? If an adult has signed a power of attorney for personal care should the attorney for personal care or the doctor decide?

A case in Ontario which dealt with this dilemma was Scardoni v. Hawryluck (FN2). Here a power of attorney authorized two daughters to make decisions concerning their mother’s personal care and to give or refuse to consent to treatment. Their mother always told them “where there is life there is hope”. So even though the doctor said there was no chance for their mother to recover, and in spite of their mother’s pain, the daughters insisted that all efforts be expended to prolong their mother’s life. The doctor disagreed because while the ventilator and drugs would sustain the mother’s life, the mother’s disease was incurable and in the doctor’s opinion the resulting pain, discomfort and loss of dignity resulted in a lower unacceptable quality of life.

Before analyzing the judge’s decision let’s review the law. The governing legislation in Ontario is the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A . Under section 10 (FN3) a doctor may not administer treatment unless he has the consent of the patient. It is arguable whether he needs the patient’s consent to withdraw treatment. Where the patient is incapable of giving his consent, pursuant to section 10, the doctor needs the permission for the recommended treatment from the Substitute Decision Maker who was designated under the power of attorney for personal care or alternatively by statute. If the Substitute Decision Makers will not consent to the doctor’s proposal the doctor can apply to the Health Care Consent Capacity Board who has the authority to order the Substitute Decision Maker to consent.(FN4) Either party may appeal the decision of the board to a judge of Ontario’s Superior Court of Justice (FN5). That is what happened in Scardoni v. Hawryluck. The Capacity Board directed the daughters to follow the advice of the doctor. The daughters refused to go along with the doctor who wanted to take their mother off the ventilator and instead appealed the Board’s decision to the Ontario Superior Court of Justice.

The Scardoni v. Hawryluck case was decided by Justice Cullity. He had to decide whether the Power of Attorney was specific enough to indicate the mother’s wishes, and if not, was there any evidence to establish what the mother would have wanted done in this situation. The hospital’s lawyer argued that the power of attorney was too vague because the mother could not have known about how painful and hopeless her situation would be. Given that their mother’s instructions were unclear, the doctor argued that the legislation directed the daughters to make their decision based on what was in the best interests of their mother. The doctor argued that it was in the patient’s best interest to withdraw treatment because the mother no longer had any quality of life. While Justice Cullity agreed that quality of life was a factor in determining the best interests of the patient, he still granted the daughters’ appeal and stopped the hospital from withdrawing the life saving treatment.(FN6) In his view, the power of attorney was specific enough and the mother made her treatment wishes known to her children.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN1. For newspaper reports on this story I refer you to http://www.nationalpost.com/related/topics/index.html?subject=Capacity+Board+of+Ontario&type=Organization

FN2. Scardoni v. Hawryluck 2004 CarswellOnt 424, 5 E.T.R. (3d) 226, 12 Admin. L.R. (4th) 67, 69 O.R. (3d) 700

FN3. Section 10 provides that treatment shall not be administered unless the doctor is “of the opinion that the person is capable with respect to the treatment, and the person has given consent; or he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act

FN4. The principles for making decision by a Substitute Decision maker is set out in section 59 of the Act. A person who makes a decision on an incapable recipient’s behalf concerning a personal assistance service shall do so in accordance with the following principles: 1. If the person knows of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, the person shall make the decision in accordance with the wish. 2. If the person does not know of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the recipient’s best interests. Under section 69(3) in determining whether the substitute decision-maker complied with section 59, the Board may substitute its opinion for that of the substitute decision-maker

FN5. See section 80. (1) which states that a party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.

FN6. Section 10 provides

A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

In Scardoni v. Hawryluck there is a very interesting part of this judgment at paragraphs 39 – 41. Justice Cullity said as follows:

The first question is whether s. 10(1)(b) imposes an obligation on a health practitioner to obtain the consent of the substitute decision-maker to a decision to withdraw, or withhold, particular treatment. Notwithstanding the inclusion of such proposals in the definition of a “plan of treatment” and the inclusion of such plans in the definition of “treatment,” Mr. Underwood suggested that the correct interpretation of s. 10 might well be that implementation of a proposal to withdraw, or withhold, treatment is not to be considered an administration of treatment within the meaning of s. 10. While a proposal of a plan of treatment that includes a withdrawal, or withholding, of one or more particular treatments would be a proposal of treatment within the opening words of s. 10, the obligation “not to administer treatment” would, on this interpretation, apply only to positive steps to be taken to treat the patient’s condition. On this line of reasoning it would follow that a substitute decision-maker’s consent – or, presumably, that of a capable person – to a withholding of treatment is not required by s. 10(1) and, to that extent, in Mr. Underwood’s submission, the Act does not alter the common law..

In other words, arguably, doctors do not need permission to withdraw or withhold treatment.

DNA Testing and Estate Litigation

February 11, 2011 by Charles Wagner

“She is not my daughter.”

The court heard evidence that the late Kerry Kelly did not believe Shauna was his daughter. (FN1) Kerry believed that Shauna’s mother “… cheated on me with no sex protection”. The judge believed Pamela Proulx, Kerry’s sister, who said that Kerry never recognized Shauna to be his biological daughter. Aunt Pamela applied to court to obtain a DNA test of Shauna and compare it to a sample of Kerry’s DNA to see whether Shauna was Kerry’s biological daughter. Shauna opposed the application. Let us review some of the reasons why the DNA test was worth fighting about and the legal arguments used by each side.

Kerry died intestate which means that he passed away without a legal will. According to the law of Ontario (FN2) where an unmarried person dies intestate his children receive the estate. (FN3) For all purposes, the law of Ontario is that a person is the child of his or her natural parents with the only exception being adopted children (FN4). Since Kerry did not have a will Shauna’s entitlement to an inheritance turned on her being the biological child of Kerry. So now we understand why Aunt Pamela wanted Shauna to take a DNA test and why Shauna resisted taking one. If the DNA test proved that Shauna was not Kerry’s real daughter then she does not get an inheritance from Kerry’s estate. On what grounds could Shauna argue that she did not have to take the DNA test?

Shauna argued that that under s. 8 of the Children’s Law Reform Act Kerry was presumed to be the father of Shauna because he was married to Shauna’s mother at the time of Shauna’s birth and he was also listed as Shauna’s father on the Statement of Live Birth. Shauna argued that it was up to her aunt to rebut that presumption of paternity and, until she did, no DNA test should be ordered.

Aunt Pamela relied on section 10 of the Childrens Law Reform Act which provides that in a court case in which a child’s parentage is at issue the court may order that DNA tests take place and if that person refuses to submit to a DNA test the court may draw such inferences as is appropriate. There is no mention in section 10 that Aunt Pamela had to rebut the presumption of parentage. Now that you have heard both sides – what do you think Justice Coats ordered?

Justice Coats ordered that the DNA test take place. In his view DNA testing was objective, impartial and scientific evidence and it was in the interests of justice for the court to consider the best evidence. He preferred DNA testing to the contradictory and less certain evidence offered by the parties and other family or community members. Does that mean that judges will always order DNA testing? Not necessarily.

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FN1. This name of this case is Proulx v. Kelly, 2010 ONSC 5817 and can be found on line at http://www.canadalawbook.ca/summaries/pdf/10334117.pdf

FN2. See Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26 and “Law of Intestacy in Ontario” found at http://www.wagnersidlofsky.com/articles/intestacy-in-ontario.php

FN3. This is not a simple matter. For example, see section 47(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26 which deals with the situation where a child dies before his parent. For example, if father had 3 children A, B and C. Assume A had 2 children of his own. A died before father. If father died without a will then his estate would be divided in three equal shares. 1/3 to B, 1/3 to C and 1/3 to A’s children. With respect to Ontario Intestacy law even if A died before his father the intestate inheritance law acts still gives A his share of the estate just as if A did not predecease his father. The late A’s portion of his father’s estate goes to A’s children.

FN4. See section 1 of the Children’s Law Reform Act

Resulting Trusts, Clean Hands and Who Gets the Cottage

January 16, 2011 by Charles Wagner | 1 comment

Albert was always a bully and Dad loved him best. Judy became a successful doctor and, in part to get away from her dysfunctional family, she moved to Montreal. When Dad died, Judy was happy to see that her father left his $1,000,000.00 estate equally to both his children. But, Albert had other ideas.

Albert went to court and claimed that 20 years ago he bought a cottage which was now in their father’s name. That cottage, now worth 400,000.00, was transferred to Dad 20 years ago because Albert was being investigated by the Canada Revenue Agency for failing to pay taxes for five years. Albert feared that the Canada Revenue Agency would take the cottage away so he transferred the property to his father for $50,000.00 except Dad never paid Albert a dime. Albert claimed that his father had held the cottage in a resulting trust for him and it now had to be transferred back to Albert. With the evidence presented there could be no doubt that Albert paid for the cottage, maintained the property and that the father participated in the scheme to protect the asset from the Canada Revenue Agency.

In our fictional scenario Albert could argue that in Ontario there is a legal presumption that people make bargains and not gifts. Accordingly, if Albert paid for everything the court should presume that he has a beneficial interest in the cottage. This is the basis of his resulting trust(FN1) claim.

Judy might argue that even if Albert’s story was true he still does not deserve to get the cottage when the whole thing was based on a scheme by Albert to cheat Revenue Canada. As Professor Waters stated in his text Waters’ law of Trusts in Canada, “The basic principle is that a person may not have the assistance of equity if the person does not come with clean hands”.(FN2). Arguably, if Albert tried to cheat on his taxes he did not have clean hands and should not benefit from the equitable remedy of a resulting trust. How could it be fair for Albert to have it both ways? To the Canada Revenue Agency Albert said the cottage belonged to Dad and now to Judy he is saying it belonged to him. Given his intention to cheat Canada Revenue Agency does Albert deserve the benefit of an equitable remedy?

In Holland v Holland (FN3) Justice Reilly of the Ontario Superior Court of Justice faced a similar question. A husband transferred a cottage into his wife’s name in exchange for $15,000.00. No money changed hands and the whole thing was a plan to avoid having an asset that would be seized for unpaid taxes. When the couple split up the husband claimed to have a beneficial interest in the cottage. This is an excerpt of the judge’s decision “…a declaration of resulting trust is an equitable remedy. In order to obtain such remedy, the applicant must approach the court with clean hands. In this case, Mr. Holland did not do so. ….It is for Mr. Holland to persuade the court that he is entitled to an equitable remedy and I conclude he has failed to do so.”

Would this reasoning in a family law dispute apply to an estate litigation matter? Maybe. Having dealt with these types of cases I can only repeat that these are very complicated matters and some courts have taken the view that despite the improper intention, if no one was in fact defrauded (for example, if it turned out that Albert never really owed Canada Revenue any money) then he might get the cottage back.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focussed on estate, commercial and tax litigation.

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FN1. There is a difference between a resulting trust and a constructive trust. A constructive trust has nothing to do with the intention of the parties. It is a flexible tool used by the courts to redirect funds or property which has been wrongly taken. It is an equitable remedy used by the courts to address an unjust enrichment. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984) at p. Defines a resulting trust as an equitable trust that arises whenever one party buys property and has it gratuitously conveyed to another or into the joint names of himself and another.”:

FN2. See Waters’ Law of Trusts in Canada, 3rd Ed. 9 — Revocation: Setting the Trust Aside
9.II — Setting the Trust Aside B. Fraud by Settlor.

FN3. Holland v. Holland 2007 CarswellOnt 7195, [2008] W.D.F.L. 49, 49 R.F.L. (6th) 97, 161 A.C.W.S. (3d) 767. Justice Reilly’s decision considered a number of cases involving a transfer of property where the intent was to defeat creditors. Most persuasive was His Honour’s quote of Lord Denning in Tinker v. Tinker, [1970], 1 All E.R. 540 at 542:
“… I am quite clear that the husband cannot have it both ways. So he is on the horns of a dilemma. He cannot say that the house is his own and, at one and the same time say that it is his wife’s. As against his wife, he wants to say that it belongs to him. As against his creditors, that it belongs to her. That simply will not do. Either it was conveyed to her for her own use absolutely; or it was conveyed to her as trustee for her husband. It must be one or the other. The presumption is that it was conveyed to her for her own use; and he does not rebut that presumption by saying that he only did it to defeat his creditors. I think that it belongs to her.”

Suing an Ontario Defendant – Security for Costs

January 13, 2011 by Charles Wagner

Tal lives in Tel Aviv. He invests $500,000 with Allen for a business venture located in Toronto Canada. An additional $1,500,000.00 is borrowed and then Allen ignores Tal’s calls and refuses to report about the business. Upon investigation Tal finds out there was no business. Allen refuses to give Tal his money back and a law suit is launched. The first hurdle Tal will face is a motion brought by Allen for security for costs.

In Ontario the loser of the law suit is often ordered to pay a portion of the winner’s legal costs. Allen argues that if Tal loses his law suit there is a concern that any cost order against him would be unenforceable. In cases like this the Ontario Rules of Civil Procedure provides a mechanism for the Ontario defendant to ask the court to order Tal to provide security for costs (FN1).

Allen will argue that Tal is ordinarily resident outside Ontario, that there is good reason to believe that the law suit is frivolous and vexatious and/or that Tal has insufficient assets in Ontario to pay the costs of the defendant.

Tal might respond that the reason he has no assets in Ontario is because Allen took it all for an apparently bogus business deal. Tal will argue that his claim has merit and that Israel has a statute (FN2) that provides for reciprocal enforcement of judgments so the risk of an unpaid cost order is minimized. Further, Tal has a home in Israel which is worth more than enough to satisfy any Ontario court cost order.

Under Ontario law a foreign plaintiff can possibly defeat an order for security by establishing that he has assets that can be used to satisfy a cost order in a reciprocating jurisdiction. However, Allen will argue that under Israeli law (FN3) there are restrictions on the ability to take someone’s home away to pay a debt so Tal should pay the security for costs. What would the court say?

There is a very interesting case relevant to our scenario that was heard by the Superior Court of Justice in Ontario called Uribe v. Sanchez (FN 4). In that case a Florida plaintiff claimed he had no money to pay security for costs and that Florida had legislation permitting the enforcement of foreign money judgments that would include a judgment for costs made in Ontario. So – argued the plaintiff, there was no risk to the defendant. The judge disagreed.

The problem with the Florida plaintiff’s argument was that Florida law exempts a person’s primary place of residence from such a judgment. In this case the court ruled that this does not meet the test as to sufficiency and quality of assets in the reciprocating jurisdiction. Despite the merits of the plaintiff’s claim, the judge was not satisfied that the plaintiff could not post security or that the plaintiff would be prevented from pursuing a meritorious claim if he were required to do so. Would an Ontario Judge see the Israeli legislation called the “Execution Law” the same way? It provides that a property that is the family home is not to be sold unless the Execution Office is convinced that the family has reasonable alternate accommodation.

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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(FN1) See Rule 56 Security for Costs RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194

(FN2) See Foreign Judgments Enforcement Law – 1958

http://www.israelinsurancelaw.com/foreign-judgments/foreign-judgments-enforcement-law-1958.html

(FN3) See the Israeli statute called the ‘Execution Law’, which says that a property that is the family home is not to be sold unless the Execution Office is convinced that the family has reasonable alternate accommodation.

הגנת דירת המגורים (תיקון מס’ 15) תשנ”ד-1994 (תיקון מס’ 29) תשס”ט-2008

38. (א) היו המקרקעין שעוקלו משמשים, כולם או מקצתם, דירת מגורים לחייב, לא יהיה רשם ההוצאה לפועל רשאי להורות על מכירת המקרקעין ועל פינוי החייב ובני משפחתו הגרים עמו מהמקרקעין, אלא לאחר שהוכח, להנחת דעתו, שיהיה לחייב ולבני משפחתו הגרים עמו מקום מגורים סביר או שיש לו ולבני משפחתו הגרים עמו יכולת כלכלית המאפשרת מימון מקום מגורים סביר, או שהועמד לרשותם סידור חלוף.

(FN4) Uribe v. Sanchez 2006 CanLii 19498 (ON S.C.)

Are Adult Children Legally Entitled To Inheritance?

January 6, 2011 by Charles Wagner

While their father loved both Samantha and Reuben equally, in his will, and in accordance with his culture, all the assets of the father were left to the male heir. Is this legal?

The legality of father’s will may depend on which province’s law applies. If the law of British Columbia governed there is a very good chance that Samantha would succeed and the Court would order the estate be split equally. If Ontario law applied and there were no other legal issues raised concerning the validity of the will then Samantha would have a less likely chance to win. Why the uncertainty? Let’s look at three cases to explain, Tataryn v Tataryn (FN1), Cummings v. Cummings (FN2) and Johnson v. Huchkewich(FN3).

Tataryn was a case in British Columbia. It was ultimately decided by the Supreme Court of Canada. In summary, the deceased’s will favoured one son and disinherited the other son and gave less money to the deceased’s wife. The court varied the will based on the deceased’s moral obligation to his wife and disinherited adult son. In British Columbia, unless there is some debt or the favoured child is a dependent, or there is a valid reason for disinheriting a person, each child has a moral and legally enforceable claim against the estate.

The importance of “moral claims” as set out in the Tataryn case was adopted by the Ontario Court of Appeal in 2004 in Cummings v Cummings. In this unfortunate case a second wife was litigating against dependent adult children of a first marriage. The son, Paul, suffered from a progressively debilitating incurable neuromuscular disease known as Becker’s muscular dystrophy. Paul, was arguably entitled to the all of the small estate. Citing Tataryn, Justice Cullity explained, “The issue of the weight to be given to moral considerations is relevant in this case: it is posed quite directly by the [second wife’s] concession that she is not in need of support. On a strictly needs-based approach, I might well be justified in ordering that the entirety of the net testamentary estate be transferred to the support of Paul…I do not think that this would be the correct disposition of the case. I believe that, apart from any residual value that is to be attributed to freedom of testamentary disposition….moral considerations continue to play a part in the analysis.”

So has Ontario followed British Columbia’s lead? Maybe, maybe not.

I have reviewed many related Ontario cases post Cummings. To the best of my knowledge no Ontario court has understood Cummings to mean that the moral claim of a disinherited adult non dependent child was legally enforceable. As you recall both the adult children in Cummings were dependants which means that the father was providing support or was under a legal obligation to provide support immediately before his death. It may be that the courts apply the moral obligation only for dependents. For example, in a recent Ontario case, Johnson v. Huchkewich, one disinherited daughter challenged her mother’s will. The judge did not even address whether a child’s moral claim constitutes a legal claim. The only relevance of “moral claims” was how it reflected on capacity. The daughter argued that her mother lacked the ability to assess and appreciate the moral claims of her children and therefore did not have capacity. The judge did not accept that argument.

So will the winds of non dependent adult children’s moral claims from British Columbia blow through Ontario? It still remains to be seen. However, there are a number of lawyers who believe it’s coming. In her article on this topic, prepared for the Law Society of Upper Canada’s continuing legal education program, Susan Woodley (a very well respected member of the bar in Ontario) answered the question this way, “almost, possibly, probably”.

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is the managing partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

FN1 Tataryn v Tataryn 3 E.T.R. (2d) 229 S.C.C.

FN2 Cummings v. Cummings ( (2004), 5 E.T.R. (3d) (81) (Ont. S.C) (Cullity, J.); see Cummings v.Cummings (2004) 5 ETR (3rd) 97 (Ont. C.A.)

FN3 Johnson v. Huchkewich, 2010 ONSC 6002

Who Gets The Engagement Ring?

December 13, 2010 by Charles Wagner

Marsha’s met Marc only 3 months ago. When she agreed to marry him she thought he was a wealthy entrepreneur. Instead, she found out that Marc only owned a small store and was barely making ends meet. When Marsha discovered her mistake she immediately started to date other men.

After Marsha agreed to marry him, Marc gave her a $20,000.00 diamond engagement ring. Soon after Marc caught Marsha on a date with another man. He demanded that she give back the engagement ring. She refused. In her mind the engagement ring was a gift. Marc sued. Who do you think should get the ring? Let’s see what the courts say.

In reviewing the case law, it seems that the most important factor for the courts was who broke off the engagement (FN1). Applying this reasoning to our story, if the courts believed that Marsha’s dating other men constituted a breaking off of the engagement they would order her to give back the ring. In some cases the courts did not consider infidelity by the woman to constitute a breaking off of an engagement (FN2). If that reasoning were applied here and the court felt it was Marc who ended the engagement then the court would allow Marsha to keep the ring. Academics criticized these decisions because, in their view, an engagement ring was a gift conditional on a marriage that did not take place and should be returned regardless of fault. That reading of the law is more consistent with section 33 of the Marriage Act which provides “Where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift”(FN3).

Whatever the husband’s rights may be to get the ring back the courts have also denied him the return of the engagement ring if he fails to ask for it because the delay seems to mean the ring changed from a gift conditional on marriage to an absolute gift.

In Okahai v. Sharify (FN4) a judge ruled that the woman had to return the engagement ring This case and other like it (FN5) were decided on the assumption that engagement rings were given in contemplation of marriage. Under these circumstances, there is an implied condition attached to the ring that the woman would marry him. The ring has the character of a pledge or something to bring the bargain or contract to marry and was given on the understanding, or the implied term, that a party who breaks the contract must return it. Since the women broke off the marriage she had to return the ring.

FN1. See Marcon v. Cicchelli ( 1993 ), 47 R.F.L . ( 3d ) 403 (Ont. Gen. Div.); Iliopoulos v. Gettas (1981), 32 O.R. (2d) 636 (Ont. Co. Ct.).

FN2. See paragraph 61 of McArthur v. Zaduk 2001 CarswellOnt 2117, 21 R.F.L. (5th) 142, 106 A.C.W.S. (3d) 380

FN3. In an annotation on Marcon v. Cicchelli the late James McLeod who was Counsel, at Mamo & Associates, London, Ontario, and Professor of Law at the Univrsity of Western Ontario expressed the opinion that the Divisional Court of Ontario was wrong. In his view a gift is either conditional or absolute. If the gift is conditional and the condition is not met, then there is no gift and the property should be returned to the donor. He based his view on Hough v. Champagne (1991), 35 R.F.L. (3d) 27, 42 E.T.R. 252 ( Ont. Gen. Div.).and s. 33 of the Marriage Act.

FN4. Okahai v. Sharify [2004] O.J. No. 4186 ( Ontario SCJ).

FN5. Veitch (Trustee of) v. Rankin (1997), 41 O.T.C. 14, [1997] O.J. No. 4642 (Gen. Div.); Marcon v. Cicchelli (1993), 47 R.F.L. (3d) 403 at 407-408 (Gen. Div.): Hough V. Champagne [1991] O.J. No. 1322; 42 E.T.R. 252 (Gen. Div.); Iliopoulous V. Gettas (1981), 32 O.R. (2d) 636 At 639 (Co. Ct.); Seiler V. Funk [1914] O.J. No. 115; 32 O.L.R. 99 ( Ont. Ca); D’andrea v. Schmidt [2005] S.J. No. 290; 2005 Skqb 201; Q.B.G. No. 2166 Of 2002 J.C.R. (Saskatchewan Court Of Queen’s Bench ).

Second Marriages and Risks to the Estate

November 29, 2010 by Charles Wagner

Joseph was 60 years old when lost his wife to cancer. On line he met an Israeli called Rebecca, a 40 year old widow. They emailed each other, grew to care for one another, and decided to marry. Rebecca and her children moved into Joseph’s home. Joseph’s adult children from his first marriage feared that Rebecca and her children were going to take away their inheritance. Joseph assured his children that Rebecca signed an agreement under which she gave up all her claims under the Family Law Act and could not claim support against his estate when Joseph died. Joseph assured them that he left his children all of his money. Should the children have relaxed? Maybe – Maybe not.

Revocation by marriage
Unless Joseph made a new will after he remarried or in contemplation of marriage Joseph’s old will was revoked by his marriage to Rebecca. By virtue of the laws of intestacy(FN1) , despite the contract, Rebecca would receive a preferential share (the first $200,000.00) and a distributive share (1/3) of the balance.

Family Law Act Considerations
So let’s assume Joseph makes a new will. Can his children rely on the fact that their father had Rebecca sign a domestic contract? Rebecca’s lawyer may argue that Joseph failed to disclose significant assets when the domestic contract was signed. Furthermore, her lawyer may argue that Rebecca’s English was minimal and she did not have independent legal advice so there is no way she understood the nature and consequences of signing this contract. Accordingly, the contract may be set aside and Rebecca could exercise her right under section 6 of Ontario’s Family Law Act. That would entitle Rebecca to receive an equal division of net family property under section 5 of the legislation.

Succession Law Reform Act Issues
Now let’s imagine that at Joseph’s insistence Rebecca hires a lawyer who speaks Hebrew so she cannot later claim she did not understand the contract. Joseph’s lawyer makes full and frank disclosure of all of his assets in the agreement. Can the children now relax? Unfortunately – the answer is not yet. Under the legislation a domestic contract is only one factor the court has to take into account and the court has the discretion to ignore the contract(FN2). For example, in Butts Estate v Butts(FN3) a husband and wife signed a separation agreement providing for $500 per month support. No one disputed that this was to be a final agreement. Despite the fact that there was a contract where both parties fully understood the terms of that agreement the court decided that the support provided was insufficient and increased the support payments to be paid by the estate to the separated wife by $1000 per month.

There is a very old joke that death is not the end – it is the beginning of estate litigation. While the scenario outlined above is fictional it nonetheless reflects a growing trend. People often feel they were treated unfairly and go to court despite signing a contract where they agreed not to make any claim. Based on my experience in dealing with these cases, and what should be evident from this review. each situation’s facts may make a world of difference to how a court might view a case. Whether a party is seeking is getting married or there is a dispute after death there is no replacement for seeking out the advice of a competent experienced lawyer who knows how to protect your interests.

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FN1. See section 16 of Succession Law Reform Act, R.S.O. 1990, c. S.26

FN2 See See Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 and in particular section 62(1)(m) which lists the factors taken into account. By virtue of an “agreement” being only one factor the courts have made awards of support even though there was a domestic contract. As well, section 63(4) which provides that an order under this section may be made despite any agreement or waiver to the contrary.

FN3. Butts Estate v Butts (1999), 27 E.T.R. (2d) 81 (Ont.GenDiv.) For an excellent reviewon this topic see Archie Rabinowitz’s article Dependant’s Support Applications – The Statute that Continues to “Speak”

Rectification – the Equitable Remedy to Fix Errors in a Will

November 12, 2010 by Charles Wagner

Sometimes even professionals just drop the ball. Imagine walking into your lawyer’s and asking him to make a few changes to your will. Instead of typing in a bequest of $2,500.00 the lawyer types $25,000.00. The Will is signed and no one notices the mistake until after the testator dies. That is what happened in Nugent v. Lang (http://bit.ly/dhN38j ). The lawyer admitted the error was his and he testified that the testator wanted the bequest to be $2,500. It should be simple right? Not so fast.

The Plaintiff asked the court to fix the mistake. The legal term for this request is “Rectification”. Courts use this equitable remedy very carefully. Exactly what type of evidence a judge may consider is being debated in the courts. How sure does the court have to be to fix the mistake? Is the court limited in how it can fix the mistake? In exercising the remedy is the court limited to only being able to delete certain parts of the will? Can a judge add missing words? In this case the court rectified the draftsman’s error and changed the bequest from $25,000 to $2,500.
Cases like Lipson v Lipson,( http://bit.ly/lipson ), Binkley Estate v. Lang, (2009) 50 E.T.R. (3d) 44 and Balaz v Balaz,( http://bit.ly/cq9BJi] ) all involve situations where the courts fixed some form of lawyer mistake. Either there was an accidental slip or omission because of a typographical or clerical error, the testator’s instructions had been misunderstood, or the testator’s instructions had not been carried out. Despite these recent cases where judges fixed mistakes made in the will it is very important to remember that not every error will be rectified by the courts.
In Re Estate of Blanca Esther Robinson (http://bit.ly/9x5g0B ) the court refused to fix the mistake. In that case the testator signed a Will dealing with her European property. She also signed a Canadian Will dealing with her Canadian property. Years later, she made a new Canadian Will but did not tell her new lawyer about the Spanish will. Since the lawyer had no knowledge about the Spanish Will the solicitor included the standard provision revoking all previous wills. The beneficiaries asked the court to fix the mistake. The court refused. The judge stated, “….if no errors were made by the solicitor and the words in the will were reviewed and approved by the testator, rectification will not be available simply because the testator was mistaken about their legal effect.” So it seems that not every mistake will be rectified.
This short review of the case law on rectification should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is the managing partner at Charles B. Wagner and Associates. This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

Do Mistresses Have a Right to Inheritance?

October 21, 2010 by Charles Wagner

Can you imagine burying a spouse and then being sued for support by his mistress? For those who believe in primacy on marriage and that marriage obligates its partners to fidelity, the idea of rewarding a mistress to a portion of the family’s an inheritance is unjust. Others argue that financial obligations should flow from the intensity and duration of life partner relationships regardless of the partners’ marital status. What do the courts think?

In Nowell v. Town Estate (http://bit.ly/nowell ) the deceased had a 24 year extramarital affair. During the week he lived with his wife, but on the weekends this man spent time with his mistress, gave her gifts worth about $125,000 and promised to support her. The mistress contributed to the man’s work as an artist without compensation. Left nothing in the will she sued the estate. Do you think she deserved any money? The Ontario Court of Appeal did.

The judges recognized that a 24 year relationship was more than casual and for the last 13 years it was quasi-spousal. The judges felt the mistress should be fully compensated because the estate was unjustly enriched. Mr. Town accepted his mistress’ help, did not pay for it, and he benefited financially. The court was influenced by the fact that the mistress made Mr. Town the focal point of her life and that through the years Mr. Town assured his mistress that he would look after her. While this did not create a legal relationship it proved the nature of the relationship. The court still awarded her $300,000.

In Mahoney v. King 1998 CarswellOnt 2348 a mistress successfully sued a married man for support because the court found that she was a common law spouse. Arguably, a mistress suing her paramour’s estate could use this case as a precedent. As a “spouse” the mistress would qualify as a dependant and would be entitled to support under the Succession Law Reform Act, R.S.O. 1990, c. S.26 if her paramour did not provide her with adequate support. There are those like the late law professor James G. McLeod who disagreed with this decision. He took exception to the idea that a woman who had an affair with a married man who lived with his wife may be a “spouse”. While Professor McLeod understood the argument of making an unjustly enriched estate compensate a mistress like in Nowell v. Town Estate he felt that to suggest that a mistress was a spouse for support purposes takes away whatever meaning is in the word “spouse”.

The different views of a mistress entitlement to support under the law should tell you that this issue is not a simple one. My short review of these cases should not be taken as legal advice. Based on my experience in dealing with these cases they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

DISINHERITING CHILDREN WHO MARRY OUTSIDE THE FAITH

October 3, 2010 by Charles Wagner

While I have previously addressed the legality of disinheriting intermarried children in both in the Tribune (http://bit.ly/9ADVJY ) and in the Ontario Lawyer’s Weekly (http://bit.ly/bv9Rjm) a recent case suggests another review is warranted. In Re Estate of Max Feinberg (http://bit.ly/cb5CKo ) three Illinois courts reviewed what they called the Jewish Clause which stated: “A descendant of mine other than a child of mine who marries outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith) and his or her descendents shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.”

The court weighed testamentary freedom against the common law’s disdain for wills that restrain people from entering into an otherwise legal marriage. The Illinois’ court of first instance and appellate court ruled that the Jewish Clause was invalid because it seriously interfered with the right of individuals to marry a person of their own choosing. It was now up to the Supreme Court of Illinois.

The Illinois Supreme Court held that the Jewish Clause was valid. The test was whether the provision was capable of producing harm that its enforcement would be contrary to the public interest. The Illinois Supreme Court upheld the Jewish Clause because they placed a premium on the right of individuals to decide what happens to their assets after they die. They disagreed with the lower courts who suggested that the clause in question was a restraint of marriage.

What is the position of other jurisdictions? As Illinois’ Justice Greman, pointed out, “… In most states they allow this – not just with Jews but for Catholics and others.” So what about Ontario? The Ontario Court of Appeal, in a non-binding aside (obiter), addressed this issue in the Fox Estate case (http://bit.ly/98b5gw). Fox’s will gave the executor absolute discretion to use trust money for his grandchildren. The executor removed all the money to disinherit her son because he married a non Jew. At issue was whether the executor’s conduct was proper. The judge commented, “….in response to a query from the bench, counsel in this case were not prepared to argue that any court would today uphold a condition in a will which provides that a beneficiary is to be disinherited if he or she marries outside of a particular religious faith”.

Given the treatment of this issue in the US, does that mean a Jewish Clause would be void in Ontario? Maybe – Maybe not. The fact that three Illinois courts came to different conclusions should tell you that this issue is complicated and this review should not be taken as legal advice. I receive calls about this and other similar issues all the time. Cases often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Scams on the Internet

October 2, 2010 by Charles Wagner

In this blog I write mostly about estate or commercial disputes. But given my recent unsuccessful attempts to defang a financial predator, I am taking the opportunity to alert people to fraudsters seeking to take advantage of the unsuspecting.

There are people who pretend to be lawyers and use the internet to scam the naive and inexperienced. Others pretend to be clients and use unsuspecting lawyers as pawns in fraudulent schemes. These financial predators promise money or business opportunity. For example, there are those who email people claiming to have found an inheritance and for a small fee these rogues promise the potential victim his inheritance. Other ne’er do wells pretend to represent companies outside of Ontario looking for a local lawyer to collect some debt. These con artists rely on fake bank drafts or certified cheques to scam lawyers before the cheques bounce back. A common scam involves identity fraud. For example, a stranger contacts a real estate lawyer and shows the lawyer a deed transferring title from the real owners to the stranger. The stranger tells the lawyer that he wants to refinance, get a new mortgage and discharge the old mortgage. The lawyer arranges the mortgage, gives the money to the stranger/new client and discharges the old one. One problem- the real owners never signed the deed – their signatures were forged. And by the way and there was no real first mortgage.

Some advice to the public when dealing with these situations:

If it’s too good to be true….. If someone contacts you out of the blue and tells you something that is too good to be true then recognize it’s likely a scam. The unheard of fourth cousin who left you lots of money is the stuff of fairy tales. I was first alerted to this type of a scam when a woman from Kansas called me and asked where she should send the cheque. I told this person that no one from my office ever contacted her. She forwarded me the emails of a person claiming to be me and seeking a “small payment” for accessing her new found inheritance. The victim looked up my number on the internet and called me because she wasn’t sure where to send the money. I alerted her to contact the police and warned her she was the victim of a fraud.
Check the Identity of the Stranger/Client: Almost every week I receive an email from a non Ontario company who invites me to represent his company in the collection of certain debts. A variation of the scheme occurs when a person claiming that their ex spouse won’t pay support payments. When I research the company I invariably find that the email address given and the name of the representative is bogus. Sometimes, the rogue assumes the identity of a real person at the company. Just last week I was contacted by someone purporting to represent an Israeli company seeking representation in my state (clearly, this rogue didn’t realize Canada is made up of provinces). As a courtesy, I called the company and alerted them. As I expected, there was no such person and they were not looking for legal representation. I forwarded the bogus email to their Israeli lawyer. So again, it’s always important to verify the person’s identity.
When a lawyer contacts you…..Every province in Canada has a law society. If someone claims to be a lawyer in Ontario then check with local law society of the province in question. For example, the Law Society of Upper Canada Ontario has a website which will tell you whether the person is a lawyer or paralegal in Ontario. See http://bit.ly/bVJUzs Last month I ran across a fraudster who calls himself Ernest Wong. The owner and operator of this website copied my website in its entirety and just replaced my name with his. This rogue even had the audacity to include my name on his website. See http://ernestwongassociates.com/commerciallaw.htm . If you check the LSUC website there is no Ernest Wong who is a lawyer. Remember, don’t feel reassured that a website on Google means a person is really a lawyer. In this case, Ernest Wong was not on the LSUC website, has been reported to Google, the Law Society and the Fraud Squad. His site is still up on Google. It is not even enough for you to see if that a lawyer exists because someone can claim to be that lawyer. Call the number given by the law society website and speak to the lawyer who left you the message to verify it’s him.
Verify the office location: Fraudsters like Ernest Wong and the person who claimed to be me to the almost victim in Kansas sometimes list their office as Osgoode Hall, 130 Queen St, West Toronto. Local Lawyers who see this recognize a red flag of fraud because there are no private law offices at Osgoode Hall. That building houses the Court of Appeal for Ontario, the Superior Court of Justice and the Law Society of Upper Canada.
Reporting Fraud. I must confess that with respect to my personal experience, I have found this process frustrating. But, here are some sites of interest if you suspect fraud. Phone Busters (http://bit.ly/Rc38 ), The Royal Canadian Mounted Police -RECOL (‘Reporting Economic Crime On-Line ), Ministry of Consumer Services (http://bit.ly/aQb24A).

So you may be wondering if I am making a mountain out of molehill. Law Pro, the organization that insures lawyers stated that in 2008 lawyers reported 10% of all claims involve fraud. Industry Canada (http://bit.ly/b79ZXe) suggests fraud is growing rapidly. In the US there are reports of internet fraud quadrupling to about 31,299 cases. While their statistics are dated, the concern is real.

I strongly urge readers, especially young lawyers, to educate yourselves on this issue. The best protection against fraud is being informed. If you are interested in following up this topic I recommend the following articles.

LAWPRO fraud prevention resources www.practicepro.ca/fraud .

Keep your guard up! An update on frauds (LAWPRO Magazine: 2009 in Review – May/June 2010)

Fraud scam alert: two new frauds to know about (LAWPRO Magazine: Personality & Practice – Winter 2008)

Fraud: A growing Problem affecting all Lawyers (LAWPRO Magazine Summer 2008) http://bit.ly/dwFkIr ;

Two new frauds: ‘the suspect purchaser’ and ‘the fictitious divorcee’ (LAWPRO Magazine Winter 2008);

The Many Faces of Fraud (LAWPRO Magazine June 2004) http://bit.ly/cZkCMy :

Lawyer Falls Prey to Pricey Internet Scam http://bit.ly/dpst9n

Fraud-proof your practice by Lisa Weinstein (LAWPRO Magazine Winter 2006)

Money Missing? Powers of Attorney, Executors and Adverse Inferences

September 21, 2010 by Charles Wagner

Very often a parent appoints the favourite child to manage the parent’s property (“power of attorney”) or be the executor under the parent’s will. Perhaps the child is honest but has no idea what obligations are involved with being an attorney for property or as an executor and fails to keep proper records. Perhaps that child is very dishonest and the lack of records is simply his way to hide the improper use of his parent’s money. So what typically happens?

The power of attorney or executor may put his money together with his parent’s money (intermingling). Caregivers may be paid cash and there are no receipts. Expenses (both appropriate and inappropriate) may be incurred and no records are kept. All of the above scenarios, which may be very innocent, are problematic.

There is both a common law and legislative duty to keep accounts of all transactions involving the parent’s property by the attorney for property (FN1) and the executor (FN2) if called upon by those with a financial interest to pass those accounts. What this means is that The Executor/Attorney for Property prepares his records in a form acceptable to the court and a judge approves of the accounts.

Based on my experience in this area it seems as if the strict obligation to keep proper records is often “honoured in the breach”. People sometimes just do not keep proper records. So in the scenario I raised above let’s assume this favourite son is unfamiliar with the fiduciary duty (F3) to keep proper records and to show his records, if asked, to people with a financial interest in his mother’s affairs. So what happens if – like in many cases – the son has no records and cannot show where he spent mom’s money? The court’s often will draw on adverse inference and assume the son has used the money for his own purposes and not for his mother’s benefit.

In Zimmerman v. McMichael Estate (FN4) Justice Strathy provides a wonderful summary of the obligations to account and the risks for not doing so. It is worthwhile for anyone interested in this area of law to review this case. In part, His Honour explains,

A trustee (FN4) must keep a complete record of his/her activities and be in a position at all times to prove that he/she administered the trust prudently and honestly. He/she must have the accounts ready and give full information.
A trustee must make a proper accounting as a condition precedent to being awarded compensation.
An adverse inference (FN5) may be drawn if the trustee fails to retain receipts supporting substantial cash withdrawals or expenses charged against the incapable person’s property and that attorney will be held personally liable for the unsubstantiated withdrawals. (FN 6).

The bottom line is that those people who take on the responsibility of being a power of attorney and or an executor should familiarize themselves with the obligations flowing from that position. Some good sites to look at to start your research are listed below in the footnotes. As well, I suggest you see the following:

Executorship: A Guide for Those Called Upon to Act as an Estate Trustee published by the Certified General Accounts of Ontario http://www.cga-ontario.org/assets/file/publication_executorship.pdf
Objections to Accounts http://www.estatelawcanada.ca/category/passing-of-accounts-and-executors-fees/
Elder Abuse in Ontario http://www.estatelawcanada.ca/category/court-appointed-guardians-of-property-and-of-person/
Put Your Own Interests Aside – Poa http://www.cbwagnerlaw.com/articles/aside-interests.php

_________________________________________________________________________________________

FN1 Someone who is appointed as an attorney for property has a duty to keep proper records which includes a duty to obtain and keep receipts. In Ontario that common law duty has been codified under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 ( see sections 32(6) Duties of guardian, Accounts; 33(1) Liability of guardian and 42; Passing of Accounts) as well as Accounts and Records of Attorneys and Guardians, O. Reg. 100/96

FN2. The RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194 outlines how the accounts should be prepared. Please see Rules 74.15 and 74.16. Also see section 39 of the Estates Act and section 23(1) of the Trustee Act, R.S.O. 1990, c. T.23. As well the LSUC has a very useful site indicating steps to be taken to pass accounts at http://rc.lsuc.on.ca/jsp/ht/passingAccounts.jsp#s9

FN3. A fiduciary duty describes a special obligation of a person placed in a position of responsibility or trust in which that person manages the assets or property of another person. For example, a power of attorney and executor are both at common law and by statute viewed as fiduciaries. So a person who is appointed as power of attorney has an obligation to act honestly, in good faith and strictly in the best interests of the person who granted that power of attorney. The same is true for an executor who must act strictly in the best interests of the estate. Please see 32(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30

FN4. A Trustee includes an executor under a will and these obligations apply equally to a power of attorney.

FN5 Justice Strathy did not use the words “adverse inference”. This phrase is my own based on his comments in paragraph 35 of the case.

FN6 This can be found on line at http://www.canlii.org/en/on/onsc/doc/2010/2010onsc2947/2010onsc2947.pdf . In paragraph 35 of his endorsement Justice Strathy refers to a number of cases to support his proposition including Lanthier v. Dufresne Estate, [2002] O.J. No 3397, [2002] O.T.C. 671 (S.C.J.) at paras. 52-57; Re Ronson, [2000] O.J. No 1294 (S.C.J.) at paras. 15-20.

Forum Non Conveniens

September 7, 2010 by Charles Wagner

Private international law and forum non conveniens is complicated. It is really too complicated to properly address is a simple blog. But, let’s consider this as wetting your appetite on the subject. So let me tell you what happened and let’s see if you come to the same conclusion as Justice Hoilett of the Ontario Superior Court of Justice. In Towne Meadow Development Corp. v. Israel Development Bank the Ontario Superior Court of Justice had to determine the appropriate location for litigating a dispute. A Canadian construction company hoped to build in Israel. The Israeli bank granted it credit. A shareholder of the company allegedly pledged company assets to secure the loan. The bank then called in its line of credit for repayment wanting access to the assets. The builder suggested that Ontario law applied and that the court case should be heard in Ontario. The Israeli bank disagreed.

Truth be told my question to you is unfair. The case was far more complicated. But nonetheless – what do you think?

Cross-border trade means contractual disputes end up in court. Ontario has grappled with issues such as this through passing legislation and application of the common law as it relates to private international law.

The courts apply certain tests to determine whether there is a ‘substantial connection’ between the litigation and Ontario. If there is that connection, our courts make their decisions having in mind that there may be a substantial connection with another jurisdiction, and then decide which forum (i.e., in our case Israel or Ontario) is best suited to hear the case. This is what lawyers mean when they speak of forum non conveniens.

In our scenario, Justice Hoilett felt that Israel was a far more convenient forum for the litigation to proceed than Ontario. The judge arrived at this conclusion by considering the fact that all loans and transactions were made in Israel in relation to projects undertaken in Israel; almost allwitnesses material to the issue were in Israel; the defendant was in Israel and representatives of the plaintiff travelled to Israel often.

This blog deals with the complicated issue of forum non conveniens, comity and private international law and is not meant as legal advice. For those interested in a more detailed review of the topic I refer you to the following articles:

Enforcing Canadian Judgments in Israel available at: http://www.hg.org/article.asp?id=19670 ;
Being Sued in Ontario – the Necessity to Go to Court in Canada available at: http://www.hg.org/article.asp?id=19634 ;and
Enforcing American Judgments in Ontario Canada available at: http://www.hg.org/article.asp?id=6168 .

Foreign Defendants – Legal issues and Strategies

August 30, 2010 by Charles Wagner

Americans sued in Ontario are at risk. Sometimes these defendants ignore Ontario law suits because they have no assets in Canada. That may be unwise. Ontario courts, under certain circumstances, will assume jurisdiction and grant judgments against American defendants. Such judgments may be enforceable in the US under private international law and the principles of comity. Americans named as defendants in Ontario litigation should contact competent lawyers in both jurisdiction to strategize about how to deal with litigation commenced in a court in Canada.

Why Should Americans Care If They Are Sued In A Foreign Jurisdiction?
Americans who are sued in Ontario sometimes ignore the claim. Perhaps it’s because there is concurrent litigation in the US. Possibly the American defendant feels it advantageous to wait until the Canadian comes to the US to litigate. Failure by the American defendant to respond will result in Default judgment against them. The Canadian Plaintiff will then hire an American Attorney to successfully enforce the Ontario judgment in the appropriate US jurisdiction. Americans who ignore litigation against them in Ontario do so at their own peril.

To appreciate the risks one has to understand that as cross border commerce increased courts and legislatures on both sides of the border had to deal with disputes. Imagine a Ontario manufacturer selling its products to an American distributor located in Texas. The American says the products are flawed and the Canadian wants to get paid. Do they go to a court in Ontario or Texas? Does the law of Texas or Ontario govern? It may be that in accordance with the principles of private international law, comity and forum non conveniens both Texas and Ontario have jurisdiction and the courts have to address which is the most appropriate jurisdiction to deal with the case. In our case scenario outlined above the Texas defendant who ignored the law suit in Ontario may find the Texas court enforcing the Ontario judgment.

First Step – Determine Vulnerability To Assets Being Seized:
Enforceability is the first issue. An American defendant in Ontario should determine if there are assets capable of being seized. Does the defendant have assets in Ontario or in a jurisdiction that will enforce an Ontario Judgement? If not then the defendant has to determine in the US jurisdiction will enforce the judgment where the defendant does have assets which are vulnerable to be seized. For example, the Uniform Foreign-Country money Judgments Recognition Act of California (FN1) provides that if there is judgment from a foreign country that deals with recovery of money, is final, conclusive and enforceable the foreign judgment is enforceable in California(FN2). Each jurisdiction may be different, but a defendant’s first step would be to determine if in accordance with relevant state legislation and the principles of private international law the judgment of the Ontario court would be enforceable in the defendant’s.

Second Step – Consult Competent Lawyer In Your Jurisdiction To Determine If, Given Your Assets, An Ontario Judgment Is Collectable:
The Canadian lawyers who have commenced a lawsuit against out of province defendants may be unaware of the differences in collecting on a judgment in Ontario or another jurisdiction. For example, contrary to Ontario the defendant’s state
1. may not permit collection proceedings against the defendant’s home.
2. may not permit wages to be garnished.
3. May exempt a certain amount of personal property.
In other words an American attorney should be consulted to determine if the defendant is judgment proof. That is why it is prudent to contact both an American attorney and Ontario lawyer to coordinate strategies. Both are necessary because a defendant with assets in Ontario will be subject to collection under the laws of Ontario. As an aside, Canadian lawyers should also address these issues when advising American clients about the utility of proceeding against foreign defendants.

Third Step – Are There Grounds To Dispute Ontario Jurisdiction?
Assuming that, given the right circumstances, an Ontario judgment will be enforceable in the American jurisdiction and there the defendant’s assets are vulnerable to being seized in collection proceedings, then coordination between US and Ontario counsel is a key to success for both the plaintiff and defendant. When our firm commences a law suit against an American Defendant we draft the claim with an eye on both:
1. establishing the foundation for an Ontario Court to exercise jurisdiction; and
2. Endeavouring to frame the claim in such a way that an American court will accept that the Ontario court had jurisdiction. It’s complicated and many states in the US have different criteria.

In Ontario the test for assuming jurisdiction in involving a foreign defendant was addressed in the seminal case of Muscutt v Courceles (2002) 60 O.R. (3d) 20. (FN3). The Muscutt test was adjusted by the Court of Appeal in Van Breda v. Village Resorts Limited, 2010 ONCA 84, (FN4). The exact nature of the test for determining jurisdiction of Ontario courts over an American defendant will hopefully be clarified as the Supreme Court of Canada has granted leave to appeal the Ontario Court of Appeal’s decision on this case. (FN5). As of the writing of this article this case has been judicially considered in Canada 22 times. For a clear review of the evolution of the test used by Ontario Courts for assuming jurisdiction of foreign defendants see Sona Dhawan’s February 17th, 2010 blog “Muscutt Quintet Test Simplified in Van Breda”. (FN6). For the purposes of this article it is unnecessary to review the Van Breda case in detail other than to say the Court of Appeal wanted, in their words, “tune-up” the Muscutt test “after seven years in the trenches”. In summary, under the new test a preliminary analysis is conducted to determine if there is a presumption that a “real and substantial connection” exists between the conflict and Ontario. The court will then look at two main issues
1. the connection between the forum and the plaintiff’s claim and
2. the connection between the forum and the defendant.
The other 6 factors set out under Muscutt are “analytic tools” used to weigh the connection between the forum, claim and defendant.
Until the Supreme Court of Canada rules otherwise the Ontario Court of Appeal test articulated in Van Breda stands. The Supreme Court of Canada will not nullify the principles of comity or forum non conveniens. There is no going back to the time where an Ontario Court will not assume jurisdiction over a foreign defendant. However, what will be addressed is the exact nature and evolution of the test set out in Muscutt. Van Breda has already been followed 12 times by different courts in Canada. In is also important to remember that the Supreme Court of Canada has addressed the issue in four key decisions in the early 1990s (FN7). As set out in paragraph 40 of the Ontario Court of Appeal decision “As Sopinka J. explained in Amchem, supra, at p. 912, “[f]requently there is no single forum that is clearly the most convenient or appropriate for the trial of the action but rather several which are equally suitable alternatives.”

Where more than one forum is capable of assuming jurisdiction, the most appropriate forum is determined through the forum non conveniens doctrine, which allows a court to decline to exercise its jurisdiction on the ground that there is another forum more appropriate to entertain the action.” Those decisions, make it clear that that the Supreme Court of Canada has accepted that while more than one forum may have jurisdiction to hear a case, each jurisdiction should exercise jurisdiction if it identifies its forum as the most appropriate forum for the litigation in accordance with the principles of international comity (FN8).

Fourth Step – Foreign Defendant to Review Grounds to Dipute Ontario Jurisdiciton.
If it is in the defendant’s interest to not litigate in Ontario the lawyer should review the case law and determine if there are grounds to dispute jurisdiction. For example, did the plaintiff commit fraud? Did the litigation process result in a denial of natural justice to the defendant? Would assumption of jurisdiction offend public policy? The following additional questions should be addressed:
• the location of the majority of the parties
• the location of key witnesses and evidence
• contractual provisions that specify applicable law or accord jurisdiction
• the avoidance of a multiplicity of proceedings
• the applicable law and its weight in comparison to the factual questions to be decided
• geographical factors suggesting the natural forum
• whether declining jurisdiction would deprive the plaintiff of a legitimate juridical advantage available in the domestic court

Conclusion
Given that the law in every jurisdiction may be different there are often advantages to the litigants in different jurisdictions. For example, if the Ontario limitation period has lapsed and the US jurisdiction limitation period has not lapsed it makes sense for the plaintiff to litigate in the US jurisdiction. Accordingly, disputes about forum are common. For anyone involved in cross border litigation it is prudent to consult with attornies/lawyers on both sides of the border to ensure that the issues of jurisdiction and vulnerability to judgments are addressed.

FN 1. Uniform Foreign-Country Money Judgments Recognition Act. There is similar legislation in 30 other states. For a more comprehensive review of this topic I refer readers to an article written by Stephen Maddex of Lang Michener LLP found at http://www.langmichener.ca/index.cfm?fuseaction=content.contentDetail&ID=10450&tID=244
FN2. The cursory description should not be taken as a detailed review of the act. For example, the California legislation indicates that it will not enforce foreign judgments which are a judgment for taxes, fines, divorce, support or maintenance.

FN3. For on line access to the case please see http://www.ontariocourts.on.ca/decisions/2002/may/muscuttC35934.pdf
FN4. For on line access to this case please see http://www.ontariocourts.on.ca/decisions/2010/february/2010ONCA0084.pdf

FN5. See the Supreme Court of Canada Case Information Summary at http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=33692 and Julius Melnitzer’s article in the Financial Post http://business.financialpost.com/2010/07/08/scc-grants-leave-in-van-breda/

FN6. Sona Dhawan reviews the Muscutt case and its treatment in Ontario. In that case the Ontario Court of appeal indicated that there must be a real and substantial connection between the dispute and Ontario before a court can assume jurisdiction over an out of province party. That 8 pronged test was reviewed, revised and simplified by the Ontario Court of Appeal in Van Breda v. Village Resorts Limited. It is an interesting blog and a worthwhile read. It can be found at http://www.thecourt.ca/2010/02/17/muscutt-quintet-test-simplified-in-van-breda/

FN7 Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 and Hunt v. T&N plc., [1993] 4 S.C.R. 289, Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022, and Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897.

FN 8. See Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897 and paragraph 39 of Mache Products Inc. v. British Columbia (Workers’ Compensation Board) 1993 CarswellBC 47; 77 B.C.L.R. (2d) 62, [1993] 1 S.C.R. 897, [1993] 3 W.W.R. 441, 14 C.P.C. (3d) 1, 150 N.R. 321, 23 B.C.A.C. 1, 39 W.A.C. 1, 102 D.L.R. (4th) 96, J.E. 93-674.

Contingency Fees in Ontario

August 16, 2010 by Charles Wagner

Every week clients approach me to take their case on a contingency fee basis. I most often decline; let me tell you why.

To begin with, let’s define our terms. A contingency fee is when the lawyer is paid if and only if the plaintiff wins or there is a settlement. If the client doesn’t get any money then the lawyer doesn’t get paid a fee.

How does one determine the amount of a contingency fee? Normally, it is a percentage of the winnings. For instance, someone who wins $1 million dollars in court might pay $300,000.00 to his lawyer in contingency fees.

Why do clients want to hire a lawyer on a contingency basis? Every person is different. Desperate people without money think that paying a contingency fee is the only way they can get to court. Other clients have money but do not want to take the risk. If they can find a lawyer willing to take the risk for them, they are willing to reward the lawyer with a higher fee.

Why do lawyers accept contingency fees? Law firms have different business models. Some law firms only take files on a contingency basis. Others only work on a fee per hour basis.

In my office we usually charge an hourly rate for our time. For me to accept a contingency fee, I must be convinced that the case can be won so as to make sure that our firm’s financial reward would exceed our potential earnings had we billed by the hour. Our financial remuneration would need to make up for the risk we would take with our time.

Even when I consider such a step I warn the client that it is likely far less expensive for them to pay me my hourly rates.

What does the Law Society say? For those interested in the Law Society of Upper Canada regulations regarding contingency fees I refer you to sub rule 2.08(3) and commentary of the lawyers’ Rules of Professional Conduct and the Solicitors Act and the regulations there under

For the clients who are considering hiring a lawyer on a contingency fee basis I have the following advice:
1. Don’t compromise on your choice of a lawyer because of contingency fee. For your own benefit, choose the lawyer who is best qualified to handle your case even if he or she will only accept payment according to their billable hours. Unprepared, unqualified lawyers can lose cases that should be won. Better qualified lawyers are worth the high fees they charge.

2. If a good lawyer is prepared to take a contingency fee maybe you should consider paying his hourly rate. It is a risk for a lawyer to take a case on a contingency fee. The lawyer will probably invest a lot of time and money in the case and if there is no settlement or victory at trial it is the lawyer who loses the time he spent on the file. The qualified lawyer who is prepared to take that risk does so because based on his expertise and experience the case likely has a very good chance to succeed. A skilled lawyer takes that risk only because, in his view, the facts of the case and the law suggest to him that it is a worthwhile risk to take. If the lawyer is willing to risk his time/money on your case and you trust his judgment then perhaps you should think twice about hesitating to take that risk because paying an hourly rate will cost less then a contingency fee arrangement.

3. Remember – even with a contingency fee there is always a risk. Even though clients who hire lawyers on a contingency fee basis only do so if they win, clients should consider what happens if they lose. If the plaintiff in a case loses the judge will likely make the plaintiff pay the defendant’s costs.

So when will I take on a contingency fee? I ask myself these questions. Is this a solid case that is winnable? If we win will we be able to collect? Is the client a stable reasonable person who really cannot afford to pay his or her legal fees? Does the client fully understand that it will be more expensive for them to take this route? Is this the only way they are able to get access to the justice system? If the answers to all these are questions are yes then I will consider taking the case. Even under these circumstances I always insist that the client thinks twice before I take on a contingency fee because if a case is so promising that it is worth the risk to me it probably means that the client is better off just paying the lawyer for his time.

Objections to Accounts

August 13, 2010 by Charles Wagner

So if you suspect that the power of attorney has done something wrong what are some of the things you should look for? The first thing you should know is that a power of attorney has both a common law and statutory duty to keep proper records of all transactions involving the property (FN1). The court may order that the accounts of an attorney be passed(FN2). When examining those accounts here are some of the things to look for:
1. Are The Accounts In Proper Court Format?Ontario legislation requires a certain format for the accounts. It provides a structure to ensure all relevant assets of the Grantor are listed and indicates what monies have been received and spent. Sometimes a less informal accounting misses information.

2. Are there Missing Assets?A proper accounting lists assets assets as of the date of the first transaction by the attorney and an ongoing list of assets acquired and disposed of on behalf of the incapable person, including the date of and reason for the acquisition or disposition and from or to whom the asset is acquired or disposed. Often the attorney will claim that the grantor gifted an asset. This is a concern because it is “…It is a fundamental principle of every developed legal system that one who undertakes a task on behalf of another must act exclusively for the benefit of the other, putting his own interests completely aside.(FN3)

3. Are there joint Assets missing from the accounting?One way for two or more people to own an asset is joint tenancy. In the ordinary course when one of those people die the survivor(s) inherit the deceased’s share, However, when a joint account is held by a child together with an elderly parent n the Supreme Court of Canada decisions of Pecore v. Pecore and Madsen Estate v. Saylor, stand for the proposition that there is a legal presumption that all these monies belong to the estate. Accordingly, unlike the normal joint accounts, these monies may not pass to the remaining owner(s) by right of survivorship.

4. Proof of Legitimate expenses - Are there Vouchers? An attorney for property has an absolute duty to keep receipts. Failure to keep receipts may lead to the court drawing an adverse inference that the attorney breached his fiduciary duty.(FN4)

5. How much Compensation was claimed?An attorney is entitled to compensation. While there is a tarrif that is only a guide. How much may depend on the language of the Power of Attorney and the nature of the assets and work done.

These are just some of examples of what should be looked at when examining an Attorney’s accounts. If a person with a financial interest has concerns they are well advised to hire a lawyer with expertise in the area to examine the accounts in detail.

FN1. See sections 32(6), and Substitute Decisions Act, 1992, S.O. 1992, c. 30 Accounts and Records of Attoneys and Guardians, O. Reg. 100/96

FN2. See section 42 of Substitute Decisions Act, 1992, S.O. 1992, c. 30 to describe who may apply to have the accounts passed. The legislation provides that the attorney, the grantor, the attorney for personal care, a dependant of the grantor, The Public Guardian and zTrustee, the Childres’s Lawyer, a judgment creditor or any other person with leave of the court.
FN3. See Jacobs v. Hershorn at http://www.canlii.org/en/on/onsc/doc/2006/2006canlii10522/2006canlii10522.html

FN4. Please see paragraphs 52 – 60 Fareed v. Wood, 2005 CanLII 22134 (ON S.C.) at http://www.canlii.org/eliisa/highlight.do?text=%22adverse+inference%22+accounting+%22power+of+attorney%22&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/on/onsc/doc/2005/2005canlii22134/2005canlii22134.html

In this case the court drew an adverse inference because t the attorney esd unable to properly account for the transactions occurring while he was attorney. In part, this results from his failure to maintain proper records. As a result of transactions occurring in her lifetime, the testamentary gifts intended by Ms. McLeod, and clearly stated in her Will, are defeated. In Sopinka, Lederman and Bryant, “The Law of Evidence” the author states, “In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation a party litigant does not testify, or fails to provide affidavit evidence on the application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist the party. ….. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.”

May An Executor Buy Estate Assets?

June 10, 2010 by Charles Wagner | 4 comments

Executors often want to buy assets belonging to an estate. Beneficiaries often suspect the executors of wrong doing. So I often am asked whether it’s legal for an executor to buy an asset from the estate. The short answer is maybe, possibly, but not usually.

To demonstrate the problem let’s imagine that Ben just died. He and his brother Harry owned an apartment building. These brothers loved and trusted one another their whole lives. Ben never married and treated Harry’s wife like his own sister and Harry’s kids like his own children. Ben was appointed as the executor and estate trustee for his late brother’s estate. The beneficiaries of the estate are the deceased’s wife and two children. The only asset of the estate is 50% of the apartment building.

Ben gets two independent appraisals valuing the apartment building at $2 million. He offers the estate $1.5 million dollars for its ½ of the apartment building. Each of the beneficiaries gets independent legal advice approving the sale. So what do you think? Under these circumstances can Ben buy the estate asset eventhough he is the executor and estate trustee? Would you change your opinion if immediately thereafter Ben gets a call and someone offers to buy the apartment building for $4 million?

The general rule of thumb, as articulated by Professor Waters in his book Waters Law of trusts is that “It is a fundamental principle of every developed legal system that one who undertakes a task on behalf of another must act exclusively for the benefit of the other, putting his own interests completely aside. In the common law system this duty may be enforceable by way of an action by the principal upon the contract of agency, but the modes in which the rule can be breached are myriad, many of them in situations other than contract and therefore beyond the control of the law of contract. It was, in part, to meet such situations that Equity fashioned the rule that no one may allow his duty to conflict with his interest”.

Estate Trustees/Executors are considered fiduciaries. The common law is very clear that as fiduciaries have an exclusive duty of loyalty to the beneficiaries. If so, a court will wonder how could Ben negotiate a deal fairly when he represents the buyer (himself) and the seller (the estate)? That is why at common law, the fiduciary is absolutely forbidden from dealing with estate property for his own benefit regardless of how honest or fair the purchase may be. Nonetheless, despite that general rule of thumb, the courts have not always been consistent in how they apply this rule. While there is a consensus that the executor must act in a way that is in the best interests of the estate the courts differ on how strictly to apply the rule.

Some court decisions suggest that Ben could not buy the estate’s interest in the apartment building because even if he was being honest and even if he meant well he cannot possibly give the exclusive loyalty to the beneficiaries when he himself stands to make a profit. Those cases would suggest any such purchase is a breach of fiduciary duty and the deal can later be set aside even if the purchase was reasonable and the beneficiaries were not harmed. For a review of those cases I refer you to CED Trusts VI.4.(c).(ii) and WatersTrusts 18.II.

Other courts have considered the Fiduciary’s duty of loyalty as being intended to prevent actual harm to the beneficiaries. If there is no harm then these cases suggest there may be some flexibility that would permit the purchase. If Ben could show that the sale caused no harm to the beneficiaries and that his actions were reasonable his purchase may be allowed. For example, Ben might argue that he paid over market value because the apartment was worth more to him because he already owned ½ . Ben might say that the beneficiaries would not have gotten a price as high from anyone else. However, a disgruntled beneficiary might suggest that Ben did not disclose that he had an offer for $4 million dollars for the apartment.

While at common law, the fiduciary is absolutely forbidden from dealing with estate property for his own benefit regardless of his honesty and fairness of the purchase, there are infrequent circumstances that courts have allowed fiduciaries to buy trust property. Examples include Re Nathanson (1971), 18 D.L.R. (3de) 495 (N.S.T.D.) and Mochan v. Omega Oil & Gas Ltd, [1988] 1 S.C.R. 348 (S.C.C.). In these cases the courts approved of sales to a fiduciary. In one instance the trustee showed he unsuccessfully tried to find a buyer and the sale was in the best interests of the estate. In the other it was clear the price was fair and those to whom the fiduciary duty was owed consented to the sale with full knowledge.

Fiduciaries who wish to purchase trust property are well advised to make 100% full disclosure to beneficiaries and obtain their consent to the sale of trust property to the trustee. As well, it would be prudent to for all the beneficiaries to obtain independent legal advice. Furthermore, the purchase price should be somewhat more then fair market value. With all these arrows in his/her quiver the trustee might be well advised to seek preapproval of the sale from the court by bringing an application for the opinion, advice and direction of the court under Rule 14.05(3)(d), and under section 60 of the Trustee Act, R.S.O. 1990, c. T.23. It may happen that a judge will decline to hear the application because they might believe that preapproval of a sale is not the advice or opinion contemplated by the legislation. A judge might point out that if this offer to purchase came from a arms length third party no application for directions would have been made. One senior counsel suggested to me that there are other legal paths which might be a better option. But that – is for another time and another blog. The bottom line is that anyone faced with this issue, whether he/she be a trustee or a beneficiary, should not treat this blog as legal advice and is best advised to seek out a competent experienced lawyer to guide them.

When is Probate Not Needed

May 4, 2010 by Charles Wagner | 3 comments

It is important for people who wish to stop estate assets from being distributed to know that a certificate of appointment (“Probate”) is not always necessary to effect the transfer of assets. For example,

When there is jointly-owned real property or bank accounts those assets pass to the surviving joint tenant by right of survivorship. In this instance the only thing needed by the surviving joint tenant is to have a death certificate. There may still ways to prevent the transfer depending of the facts specific to the situation.
Real Estate, under certain circumstances, may be transferred under a will without probate. See Bob Aaron’s article at http://www.thestar.com/article/248950 and the Memo to Land Registrars from Kate Muray dated October 30, 2000 at Registrar’s Memo where land registars are provided guidelines under what circumstances they are authorized to waive the requirement of a certificate of appointment of estate trustee when approving the transfer of property.
Insurance Policies, RRSPs may designate a beneficiary and probate may not be necessary to access those funds.
Shares in a private corporation. In order to avoid probate fees sophisticated investors use multiple wills. Since a great deal of wealth may be concentrated in the shares of these private corporations the testator may have made a separate will to deal with these shares and probate would not be necessary. For those interested in this topic I refer you to the Granovsky Estate case.

For those who wish to stop the distribution of non probatable assets it is important to know that more might be required then simply blocking probate by filing a notice of objection. If the asset in question is real property then one should contact a lawyer and investigate the possibility of obtaining a certificate of pending litigation or caution against title. If one seeks to stop the transfer of shares then one must go to court and seek judicial intervention. Those who ignore these possibilities do so at their peril.

How to Apply for Probate In Ontario

May 4, 2010 by Charles Wagner

The best step an estate trustee can take is to approach an experienced solicitor for assistance in obtaining probate. The process will likely go far quicker and more efficiently. For those who wish to educate themselves on how to obtain probate here are some sites that might prove useful:

The Law Society of Upper Canada at http://rc.lsuc.on.ca/jsp/ht/prepareAppCertAppEstateTrusteeWithWill.jsp#s7
Ministry of Attorney General – Where do I file an application for “Letters Probate”
See RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194 Rules 74.04, 74.05, 74.05.1, 74.06, 74.07, 74.08, 74.09
sections 5-7 of the Estates Act, R.S.O. 1990, c. E.21
Estates Administration Act
Estate Administration Tax Act
Succession Law Reform Act

Stopping Probate

May 2, 2010 by Charles Wagner

Why would someone want to stop a probate application? How can probate be stopped?

Imagine that Mom is senile and in the nursing home. She is at death’s door and her daughter Debbie brings in a lawyer to draft a new will in which Mom names Debbie as her executor and bequeaths her home and all her money to Debbie. When Mom dies, her son Ian is upset especially since the previous will divided everything equally between him and Debbie.

WHY STOP PROBATE? In Ontario when the deceased left a Will, Probate is called a “certificate of appointment with a will”. In our case scenario if the court issues Probate Debbie, as estate trustee/executor, has authority to administer the provisions of the Mom’s will. Ian will want to stop probate because otherwise his sister will inherit Mom’s home and get all of Mom’s money. Without probate:

banks are unlikely to release the Mom’s money or give the executor access to the deceased’s safety deposit box;
public companies will not transfer shares to the estate;
insurance companies are loathe to pay out on policies without first seeing a certificate of appointment; and
the land registrar ordinarily does not permit the transfer of land based only on the will. It is for this reason that, more often than not, executors apply for and receive a certificate of appointment with a will.

This certificate of appointment gives these institutions the certainty that the document in question truly is the last will and testament of the deceased and permits the executor to carry out his duties.
So – the bottom line is if there is a will challenge the challengers want to prevent the Will from being probated.

HOW TO STOP PROBATE IN ONTARIO
If the court has not granted probate then the first step should be filing a Notice of Objection to prevent the Will from being probated. The Notice of Objection will set out the nature of our client’s financial interest and the grounds for the objection. As long as the objector follows the necessary legal steps, as a result of filing the notice of objection the applicant for a Certificate of Appointment of Estate Trustee (the Probate application) cannot obtain probate without the issues in dispute being litigated or resolved. For more information on this process see Rule 75.03 of the Rules Of Civil Procedure – R.R.O. 1990, Reg. 194.

If Probate was already granted then the parties challenging the will have stop the executor from administering the estate and the only way to do that is to bring a motion for the return of the certificate of appointment or for the court to revoke the certificate of appointment.

Return Of Certificate Of Appointment Rule 75.05 Ian could bring a motion asking the court to make his sister return the certificate of appointment (the Probate) because he is challenging the will.
Revocation Of Certificate Of Appointment Rule 75.04. Ian could also bring an application to have the Probate Revoked. To do so he would have to have an apparent financial interest in the estate and be able to satisfy the court that :

                o the certificate was issued in error or as a result of a fraud on the court;
                o the appointment is no longer effective; or
               o the certificate should be revoked for any other reason.

Seduction, Marriage and Elder Abuse

April 11, 2010 by Charles Wagner

Maurice Banton was an 88 year old father too unwell to live alone. His children moved him into a senior’s residence. Maurice meets Muna, a waitress working at the senior’s residence, and romance blooms. Did I forget to mention Muna was 50 years younger that Maurice?

This was the case of Banton v Banton (FN1) and its fact situation underscores the risk to the elderly being victimized by financial predators. Was Muna really after Maurice’s money? To quote the judge, “I have no doubt at all that this influence was deliberately exerted to enable her to obtain control and, ultimately, the ownership of his assets.”

Despite the protestations of his children, the young waitress woos the elder Mr. Banton and gets him to marry her. Unbeknownst to his children the young lady also contacts her lawyer and arranges for her new husband to make new wills which cut out his children. Why would a father who loved his children do such a thing? The court found that “It is the case of a lonely, depressed, terminally ill, severely disabled and cognitively impaired old man whose enfeebled condition made him an easy prey for a person like Muna with designs on his property.” Maurice suffered from the delusions that his children did not love him and only wanted his money. This insane delusion directly impacted on the decision to disinherit his children.

It was clear to the judge that the decision to give him money to his wife was not Mr. Banton’s. On the contrary, that decision was really the wife’s who imposed her will on him. The new Mrs. Banton played on her husband’s upset that his children sold his house and, contrary to his hope and expectation, they had put him into Lifestyles instead of allowing him to live with one of them. George Banton believed his unfounded allegation that his children were not interested in him and were only interested in his money. So does this mean Mrs. Banton gets nothing? Not so fast.

The court noted that while the man did not have the capacity to make a will, he did have the capacity to get married. Since the threshold for the capacity to marry was so low, the children’s attempt to annul it did not succeed. Apparently, even a man who is lonely, depressed, terminally ill, severely disabled and cognitively impaired had sufficient memory and understanding to continue to appreciate nature and responsibilities of marriage and that was sufficient to validate the marriage. Furthermore, in Canada, Ontario’s Succession Law Reform Act provides that a Will is revoked by the marriage of the testator so that despite the fact that Muna deliberately planned this charade it looked like Maurice’s previous Will was cancelled and the woman who schemed to obtain his property would succeed. Under the Succession Law Reform Act a spouse would inherit a preferential share of Maurice’s estate ($200,000.00) under an intestacy plus her distributive share. Fortunately for Maurice’s children, Justice Cullity found a way to do the right thing.

In this case, the children were fortunate that the judge found that the father’s residence was really held in trust for the children so it did not form part of the estate. Muna did not get much money. This time the children were lucky. Unfortunately, that is not always the case.

Anecdotally, as someone whose practice focuses in on estate litigation and elder abuse I see it happening more often. There is a very interesting paper (FN2) published by a Statistics Canada based on Statistics Canada sources. They report that “…overall, 7% of older adults experienced some form of emotional or financial abuse by an adult child, caregiver, spouse or common law spouse with whom they had contact in the five years prior to the survey. The vast majority of emotional and financial abuse was committed by spouses. Senior men (9%) were more likely than senior women (6%) to report being victims of emotional or financial abuse.” To measure financial abuse Statistics Canada and the Toronto Police Service (FN3) asked seniors certain questions which I have summarized below. If one suspects the answer is yes to more than half it’s time to seek out professional counsel for advice.

Has the alleged rogue
1.     tried to limit the elderly person’s contact with his family or friends?
2.     put the elderly person down or calls them names to make them feel bad?
3.     is jealous and doesn’t want the elderly person to talk to other men/women?
4.    Threatens to withdraw care or threatens the elderly persons or someone close to the elderly person?
5.    demands to know who the elderly person is with or speaks to at all times?
6.    damages or destroys the elderly person’s possession or property?
7.    prevents the elderly person from knowing or having access to the elderly person’s income or financial information?
8.    tries to compel the elderly person to relinquish control over finances?
9.    tries to force the elderly person to give up something of value?
10.  they try to force you the elderly person sign documents which were not understood or to change Last Will and Testament or try to obtain Power of Attorney over your finances?
11.   introduced a new lawyer into the situation which the elderly person never met before and has no knowledge of the elderly person’s history?

Do not consider this case review as legal advice. It is presented merely to demonstrate some of the disputes dealt with by this firm and its counsel and how one court dealt with some of the issues relating to elder abuse. It is important to remember that each case has a different set of facts which may give rise to additional and or different remedies or prevent the court from awarding the same type of relief. If you believe your fact situation is similar and litigation may be pending or has already begun, it is always prudent to contact a competent lawyer who will deal with the specific fact situation and legal issues particular to your case.

FN1 Banton v. Banton 1998 CarswellOnt 3423, 164 D.L.R. (4th) 176, 66 O.T.C. 161. Available on line at http://www.canlii.org/eliisa/highlight.do?text=banton+cullity&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/on/onsc/doc/1998/1998canlii14926/1998canlii14926.html

FN2 http://www.statcan.gc.ca/pub/85f0033m/85f0033m2001008-eng.pdf
FN3 http://www.torontopolice.on.ca/crimeprevention/elderabuse.php

Elder Abuse in Ontario

March 25, 2010 by Charles Wagner | 11 comments

There may be as many as 150,000 seniors being victimized in Ontario.(FN1) The elder abuse can take many forms. One common form of elderly abuse is financial. The purpose behind this blog is to provide some information to people on the first steps they might consider when discovering the problem. Let’s first talk about signs of financial elder abuse.

According to the Toronto Police Service Website(FN2) these are some signs to watch out for:

Has the Power of Attorney been changed?
Is the elderly person suddenly short of money to pay for living expenses?
Has the elderly person been brought to sign legal documents they say they don’t understand?

Another red flag of financial abuse of the elderly occurs when large gifts or transfers of money take place. It is normal for children to become joint account holders in order to help parents pay their bill. However, it is suspicious for large chunks of cash to be transferred out of the joint accounts as gifts or expenses unrelated to the real owner of the account. Often the powers of attorney say that their elderly parent gave them this money as a gift. That might be true – but then again one must ask if there was there pressure placed on an elderly vulnerable person to make that gift? The common law(FN3) and Ontario’s Substitute Decisions Act(FN4) makes it very clear that a Power of Attorney is a fiduciary. What that means is that the power of attorney has undertaken to do things on behalf of a potentially vulnerable person and must act exclusively for the benefit of that person putting his interests totally aside. Taking money from an elderly person who is relying on that power of attorney may go against that Power of Attorney’s duty to act diligently, with honesty and integrity, and in good faith for the donor’s benefit. (FN5)

Options if you suspect Elder Abuse In Financial Matters

Call the Police. The Toronto Police Services Unit has a web site(FN6) which describes their efforts. Their contact numbers for a non emergency is 416 808 7040. For an emergency it is 411. The problem is that while the provincial government recognizes that the financial abuse of the elderly is horribly wrong, it is not always viewed as a crime(FN7). Furthermore, the police will sometimes view accusations against a power of attorney as a family dispute not warranting police charges.

Call the Office of the Public Guardian and Trustee (FN8). In the context of my practice I have dealt with the Public Guardian and Trustee a lot. They are altruistic and genuinely interested in helping the elderly. The problem is that they are under resourced and view themselves as a last resort. If they are convinced that it is a very serious financial abuse of an elderly person they will investigate a report that a mentally incapable person has been victimized and apply to court to become the abused elderly persons Temporary Guardian of Property. To report this type of serious abuse you can call the OPGT at 416 327 6348.

Educate yourself on Elder Abuse issues and get Legal Help. An excellent place to start is with the Advocacy Centre for the Elderly (ACE) a community based legal clinic for low income senior citizens. They have an excellent website which will be helpful (http://www.acelaw.ca/) and the lawyers at will talk to people on the phone and if more than a phone call is necessary they may make an appointment. Their phone number is 416-598-2656.

Hire a Lawyer and seek an accounting. Powers of Attorney have to keep records and receipts of all money they received on behalf of the person under their care(FN9). They also have keep records of the money spent. If you believe an elderly person is being financially abused write down all the facts you are relying upon to support that belief. The lawyer you hire will want to know:

Who is the power of attorney for property?

Who has control over the elderly person?

What is your relationship to that elderly person?

This last point is very important because under the Substitute Decisions Act, the Power of Attorney must keep accounts of all transactions involving property. The courts take this duty very seriously. The court may, on application order that the attorney have to pass his accounts.

But who may apply to the court? The elderly person in question, A dependant of the elderly person, The Public Guardian and Trustee, The Children’s Lawyer, A judgment creditor of the elderly person and Any other person who seeks and obtains permission of the court to apply.

If a court has found that the power of attorney abused their position the court can remove him/her, appoint a new guardian of person. If that Power of Attorney has been unjustly enriched at the expense of the elderly person then the court may order restitution. Now it may be impossible to recover the asset taken in its original form and the court may provide a tracing order

If you need a lawyer it is always a good idea to ensure that the person you hire has expertise in the area. If you do not know someone like that you can contact the Lawyer Referral Service provided by the Law Society of Upper Canada at http://www.lsuc.on.ca/public/a/faqs—lawyer-referral-service/

It would be a mistake to treat this blog as substantive legal advice. For those considering commencing an application to compell an accounting, there is no substitute for hiring a competent lawyer whose own research, analysis and judgment should be canvassed.

Here are some resources which may be of assistance:

Ontario Ministry of the Attorney General website. See the section on Elder abuse: http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/criminal_law.asp#elder
Advocacy Centre for the Elderly: http://www.acelaw.ca/services.php
Public Health Agency of Canada website. This discusses the financial abuse of the elderly and possible ways to stop it. http://www.phac-aspc.gc.ca/ncfv-cnivf/publications/agefinancialab-eng.php
Ontario’s Seniors’ Secretariat http://www.culture.gov.on.ca/seniors/english/programs/elderabuse/

FN1 http://www.onpea.org/english/contactus/stategytocombatelderabuse.html

FN2 http://www.torontopolice.on.ca/communitymobilization/elderabuse.php

FN3 http://www.cbwagnerlaw.com/pdf/put_your_own_interests_aside.pdf

FN4 http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_92s30_e.htm

FN5 See section 32(1) of the Substitute Decisions Act which provides “A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.”

FN6 http://www.torontopolice.on.ca/communitymobilization/elderabuse.php

FN7 http://www.onpea.org/english/contactus/stategytocombatelderabuse.html Note that certain financial abuse can be a crime. For example, theft, fraud, forgery and extortion are criminal offences.

FN8 See a very good article “Elder Abuse: The Hidden Crime” by ACE which is the Advocacy Centre for the Elderly and Community Legal Education Ontario (CLEO) at http://www.cleo.on.ca/english/pub/onpub/PDF/seniors/elderab.pdf

FN9 The duty to account is set out in the Substitute Decisions Act. There are regulations which set out how these accounts must be maintained. Please see ONTARIO REGULATION 100/96 ACCOUNTS AND RECORDS OF ATTORNEYS AND GUARDIANS http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_960100_e.htm

First Step in Will Challenge in Ontario

March 24, 2010 by Charles Wagner

The first step to challenging a Will in Ontario depends on whether probate been granted? Any person can go to the local court registrar and do a search to see if the court has granted a certificate of appointment which established the validity of the Will (Probate). If probate has not been granted then the person objecting to the will can file a form called “a Notice of Objection” with the court registrar. If probate has been granted then the person objecting to the will has to bring a motion for the return of the certificate of appointment.

Why is this first step so important? Once the Notice of Objection is filed and in effect the Court Registrar will not issue a certificate of appointment (Probate). It’s important to remember that the granting of probate tells the world that the Will in question is the last will and testament of the deceased and a valid document. It tells the world that the executor is in charge of the assets of the deceased. There is a risk that a dishonest or uninformed estate trustee, when granted Probate, can sell the assets of the estate to an innocent third party or even taken them out of the jurisdiction. This means that even if the will challenge is successful collecting on that judgment may be frustrated because the assets are already gone and possibly untraceable.

Even if the probate application is made in Toronto the person challenging the will can file his/her objection with their local court registrar because Ontario’s court system is linked. But be careful – it is not instantaneous. I have seen certificate of appointments being issued in one city after the filing of notices of objection in another city because they were not inputted into the system yet and the registrar did not know there was any objection. The best practice is to file the notice of objection with the court registrar where the application for probate has been started.

It’s important to remember that filing a Notice of Objection is only one important step in the litigation. The real first step for anyone challenging a will is to seek the advice of a lawyer familiar with the process. That lawyer can review the file and advise you if there is a worthwhile challenge to the will. Furthermore, filing a Notice of Objection is a relatively simple inexpensive step. But, if it is not done properly and as a result the court registrar issues a certificate of appointment. then a more costly process (a motion for the return of the certificate of appointment) will have to be taken.

It is also very important to know that estate assets may be at risk even if the person challenging the will files a notice of objection. Remember, the power of the estate trustee/executor to deal with estate assets comes from the Will itself – not the certificate of appointment. It’s just that there are certain institutions like banks and insurance companies who need to be certain that the documents being shown to them is really the last will and testament of the deceased. There are assets, like the shares in private corporations and real estate (under certain circumstances) that can be transferred without the estate trustee getting probate. An experience lawyer can guide you in how to go to court, freeze the other assets and challenge the will.

Some on line links that may be helpful

Rules 74.12(1) (b) and 75.03 – Objection to Issuing Certificate of Appointment. See http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900194_e.htm

Notice of Objection Form 75.1. See http://www.ontariocourtforms.on.ca/english/civil

To Find Lawyers. See the Lawyer Referral Service provided by the Law Society of Upper Canada at http://www.lsuc.on.ca/public/a/faqs—lawyer-referral-service/

Articles by Charles Wagner

Options if you suspect Elder Abuse In Financial Matters

Some on line links that may be helpful

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