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Wills, Trusts & Estates

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Tuesday, June 06, 2017 @ 08:36 AM

DEPENDANTS' RELIEF LEGISLATION - Legal and moral obligations of deceased

Appeal by the deceased’s former wife, Anastasia, from the dismissal of her appeal from a decision that the proceeds of an insurance policy were included in the deceased’s estate and available to satisfy dependants’ claims. Anastasia married the deceased, Stephen, in 2003. They had two children. During the marriage, Stephen took out a life insurance policy and listed Anastasia as the beneficiary. After Stephen and Anastasia separated, a consent order was made which provided that Stephen was to pay interim child and spousal support and maintain Anastasia as the irrevocable beneficiary on any life insurance policy. Following separation, Stephen began another relationship. A child was born of that relationship three months after Stephen’s death. Prior to his death, he executed a will and an insurance title form. In each document, the beneficiary designation provided for 10 per cent to Anastasia, 17 per cent to his son, 19.4 per cent to his daughter and 53.6 per cent to his new girlfriend. When Anastasia learned of the change in designation, she successfully brought a motion to restore her designation under the policy. Following Stephen’s death, his new partner applied under the Succession Law Reform Act (SLRA) for dependant’s relief. Included in her application was a request for a declaration that s. 72 of the SLRA applied to the insurance proceeds such that they formed part of the estate. The trial judge concluded that Stephen "owned" the policy, that Anastasia did not have "creditor rights" within the meaning of the SLRA and that the consent underlying the order did not entitle her to an amount equal to the death benefit under the law of contract. The Divisional court dismissed Anastasia’s appeal, concluding that the trial judge correctly determined that Stephen owned the policy and that Anastasia’s irrevocable beneficiary designation did not give her creditor rights because she had not established a security interest in the policy. ... [read more]

Tuesday, June 06, 2017 @ 08:35 AM

GIFTS - Inter vivos - Validity of transfer - Invalidation of gift - Undue influence exerted on donor

Appeal by Morreale from the dismissal of her claim that an inter vivos gift her parents made to her sister Romanino was the result of undue influence. The parties were the only two children of the Ruccias. Morreale left the family home to marry when she was 20 years old. Her husband had a poor relationship with her father. Romanino lived with her parents all her life, even after her marriage in 2003. In 1995, the Ruccias executed mirror wills, providing that, on the death of the survivor, two-thirds of the Ruccias’ interest in a property on Beck Drive would go to Romanino and one-third would go to Morreale, with the residue of the estate to be shared equally between the parties. Mr. Ruccia was cared for by Romanino and her husband through his illness with cancer. He died in March 2009. Mrs. Ruccia died in October 2009. Morreale subsequently learned her parents had made an inter vivos gift of their equity in the Beck Drive property to Romanino, which had been sold. The proceeds of the sale had been used to purchase another property where the Ruccias lived with Romanino and her husband until their deaths. Only Romanino and her husband were on title to the new property. The Ruccias did not receive independent legal advice on these transactions. The judge found that while Romanino’s relationship with her parents had the capacity to create undue influence, there was no act of coercion or domination that would lead to a presumption of undue influence. She determined that even if the presumption had arisen, the presumption had been rebutted. ... [read more]

Friday, June 02, 2017 @ 09:09 AM

Appeal decision shines light on life insurance, Succession Law Reform Act

The recent decision of the Ontario Court of Appeal in Dagg v. Cameron Estate, 2017 ONCA 366 contains important lessons for family and estates lawyers, mediators and financial advisers.   ... [read more]

Wednesday, May 31, 2017 @ 09:10 AM

Estate trustees must be proactive when overseeing a business

Knowing how to avoid failure is an essential element of business survival. This particularly rings true in estates where an estate holds the shares in an operating business where the deceased was the sole owner and essentially the “mind and management” of the company. As is characteristic with most entrepreneurs, much of the business knowledge that led to the success of a particular company remains with the entrepreneur and upon the entrepreneur’s death, gets buried with the deceased. ... [read more]

Tuesday, May 30, 2017 @ 08:54 AM

Children conceived after death

Technology now allows cryopreservation of sperm, ova and embryos, which can be used to conceive a child after the donor’s death. ... [read more]

Wednesday, May 24, 2017 @ 09:25 AM

Wave of litigation coming as baby boomers start transferring wealth

For the first time in Canadian history there are more seniors than children. As our population ages, estate lawyers are bracing for a wave of litigation as the post-war cohort, the richest cohort in Canadian history, prepares to transfer its wealth to its children and grandchildren, the baby boomers. ... [read more]

Tuesday, May 23, 2017 @ 08:39 AM

Charitable pledges: Are they enforceable?

Charitable giving has a long and honorable tradition, as the names of many university buildings and hospital wings attest. Ryerson’s Ted Rogers School of Management is a tribute to its namesake, whose family has donated over $27 million to the university. Earlier this year, the main campus of Toronto East General was rechristened Michael Garron Hospital after the Garrons donated $50 million. While the philanthropic urge may be widespread, the fulfillment of charitable pledges is not a foregone conclusion. That is because charitable pledges, where the donor promises to make a contribution in the future, are generally not enforceable at common law. ... [read more]

Friday, May 12, 2017 @ 10:46 AM

Ontario rent controls an opportunity lost for legal profession | Julius Melnitzer

Rent controls and funeral homes have a commonality. Both represent opportunity in the legal market; rent controls, an opportunity lost, and funeral homes an opportunity seized. They also represent the great divide that exists between the headspace of lawyers on this side of the Atlantic and that of the profession in the United Kingdom. ... [read more]

Wednesday, May 10, 2017 @ 10:55 AM

Brayley named partner with Clark Wilson tax group

Clark Wilson LLP welcomes Cathie Brayley as a partner with its tax group in Vancouver. ... [read more]

Wednesday, May 10, 2017 @ 10:55 AM

Former justice Cullity to receive OBA estates award

Maurice Cullity, former judge with the Ontario Superior Court of Justice, was named the winner of the Ontario Bar Association (OBA) Award of Excellence in Trust and Estates Law, in April 2017, and will be honoured at a May 31 reception at the Four Seasons Hotel in Toronto. ... [read more]