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Wills, Trusts & Estates


Thursday, January 19, 2017 @ 07:00 PM

Wills, Estates & Trusts Law - WILLS - Preparation and execution - Undue influence, fraud and mistake - Mistake - Types of mistakes - Drafting errors - Remedy

Appeal by the Trustee of the McLaughlin Estate from an order finding a secondary Will invalid. In 2012, the Testatrix passed away. In 2010, she had executed a primary and secondary Will with instructions to her longtime solicitor. The secondary Will addressed her home. The primary Will addressed the balance of the Estate. Clerical errors resulted in mistakes in the secondary Will. It repeated specific bequests made in the primary Will, included a revocation clause revoking all other previous Wills, including the primary Will, and omitted a residue disposition, such that an intestacy would result. In 2014, a judge ordered rectification of issues with the secondary Will in order to correspond with the Testatrix’s instructions to her solicitor. The order was not appealed. Thereafter, the Estate Trustee applied to remove an objection to appointment filed by the respondents. The application judge, of his own initiative, embarked on an examination of the validity of the secondary Will. The judge ruled that the Will was not valid based on the 2014 judge’s finding the Testatrix had not read or approved the contents of the secondary Will. The Trustee appealed. ... [read more]

Thursday, December 22, 2016 @ 07:00 PM

Wills, Estates & Trusts Law - Trusts - Resulting trusts - Creation - Presumed resulting trusts - When presumption operates - Voluntary transfer

Appeal by the defendant, Cooper, from a trial judgment finding she held property in trust for the benefit of her late mother’s estate. The parties were sisters. In 1989, their mother transferred title to herself and the defendant as joint tenants. In 2012, the mother passed away and the defendant took sole title by survivorship. The defendant alleged the 1989 transfer was in consideration for her payment of past and future expenses related to the home, her support of her mother, and her promise she would not be placed in a nursing home. The plaintiff, Franklin, denied the existence of any such agreement. The plaintiff alleged the agreement was to ensure that their mother would not be defrauded into transferring title to the home to a third party. The plaintiff claimed that the home formed part of the mother’s estate. The trial judge found that the 1989 transfer into joint tenancy was gratuitous. The trial judge concluded that the presumption in favour of a trust operated such that the defendant held her share for the benefit of the mother’s estate. The defendant appealed. ... [read more]

Thursday, December 01, 2016 @ 07:00 PM

Henson trust not just for special needs families

Many lawyers and families know that Henson trusts are uniquely useful for families with members with disabilities and special needs. Many more don’t realize the other uses for Henson trusts for those who don’t have disabilities and or special needs. ... [read more]

Thursday, December 01, 2016 @ 07:00 PM

Estate trustees play nice or pay the price

A recent decision of the Ontario Court of Appeal is a wake- up call for estate trustees and other fiduciaries. In Brown v. Rigsby 2016 ONCA 521, the court denied estate trustees indemnification of their legal costs. As a general rule, estate trustees involved in litigation over the estate are entitled to be indemnified for reasonably incurred legal costs. However, the Court of Appeal ruled that indemnification is not only conditional on the legal costs incurred being reasonable, but as well, the reasonableness of the conduct of the estate trustee seeking indemnification. ... [read more]

Thursday, December 01, 2016 @ 07:00 PM

Preventing poverty not a charitable activity

On June 24, in Credit Counselling Services of Atlantic Canada Inc. v. Canada (MNR) 2016 FCA 193, the Federal Court of Appeal found that Credit Counselling Services of Atlantic Canada Inc.’s activities that related to the prevention of poverty could not be classified as charitable activities for the purposes of the Income Tax Act (ITA). ... [read more]

Thursday, December 01, 2016 @ 07:00 PM

The problem with guardians

Disputes about the appointment of a guardian of property and/or personal care for incapable individuals are on the rise. With an aging population, these types of disputes made under the Substitute Decisions Act (SDA) have become much more prevalent, but they are by no means limited to the elderly. ... [read more]

Thursday, November 24, 2016 @ 07:00 PM

Wills, Estates & Trusts Law - Gifts - Inter vivos - Presumption against gift, resulting trust - Rebuttal - Presumption of advancement - Person in loco parentis - Rebuttal - Validity of transfer

Appeal by the plaintiff, the Thorsteinson Estate, from a judgment dismissing an action and upholding a gift in favour of the defendant, Olson. The testator had served as the defendant’s nanny and they subsequently developed a close relationship akin to parent and child. As an adult, the defendant lived at the testator’s property for several years. In 2000, the testator signed a deed of gift transferring nine parcels of farmland to herself and the defendant as joint tenants. In 2001, a dispute arose between the parties and the testator subsequently commenced an action seeking to have the transfers set aside on the basis of resulting trust, undue influence and breach of fiduciary duty, and seeking an accounting for the defendant’s use and occupation of the land. The testator’s Estate continued the action following the testator’s passing. The trial judge dismissed the action in its entirety and upheld the gift. The trial judge found no evidence of undue influence, and concluded that if the presumptions of either undue influence or resulting trust had arisen, both were rebutted by evidence of an intention to provide a complete and unconditional gift to the defendant. The Estate appealed. ... [read more]

Thursday, November 10, 2016 @ 07:00 PM

Wills, Estates & Trusts Law - Proceedings - Practice and procedure - Costs

Appeal by Roberta Cook and Ruth Estabrooks from the award of costs they received in successfully defending estate litigation. Roberta and Ruth sought solicitor-client costs, while the unsuccessful plaintiffs in the litigation also argued that they should have been awarded solicitor-client costs. Jarvis Estabrooks executed his last will and testament on May 3, 2001. The will was accidentally destroyed while Jarvis sorted through papers. That will provided for $40,000 bequests to each of two of Jarvis’s daughters, while his other three daughters were largely disinherited. The vast majority of the estate was bequeathed to two nieces, Roberta and Ruth. Ruth was also named executrix. Jarvis died in January 2012. Ruth applied for probate. The daughters filed caveats, asserting their entitlements to share in the distribution of the estate as dependants. The daughters subsequently amended their claims to argue that Jarvis intentionally destroyed his will and therefore died intestate. Ruth and Roberta offered to settle for $80,000 all-inclusive on September 8, 2014. The daughters countered with an offer to accept $350,000. The court in part relied on evidence from Jarvis’s friend Shaw in finding that the destruction of the will was unintentional, and that Jarvis was unconcerned because he had a copy of the will filed with his lawyer. The court awarded $870,000 in party and party costs to Roberta and Ruth, payable by the estate. He denied Ruth and Roberta solicitor-client costs from the date of the settlement offer because the daughters’ claim was not dubious, because the $80,000 offer represented less than 10 per cent of the potential recovery, and because the daughters narrowed their issues before trial, abandoned their claims of dependency, provided security for costs and consented to the taking of evidence by way of commission before the trial. ... [read more]

Thursday, October 27, 2016 @ 08:00 PM

Legal Profession - Regulation of profession - Law societies and governing bodies - Compensation funds

Appeal by the defendant from a decision dismissing his motion for an order striking out the statement of claim. The appellant, a lawyer, was the executor and lawyer of the plaintiff estate. The beneficiaries of the estate commenced the present action after the appellant sold the major asset of the estate, a home, below market value without disclosing that the purchaser was his wife. The Law Society subsequently reimbursed the plaintiff beneficiaries $47,000 from its reimbursement fund for the appellant’s conversion of estate property, obtained a release and assignment from the plaintiffs and assumed conduct of the within action. The appellant argued that the action, being funded by the Law Society, was the product of champerty or maintenance and that the Law Society had no legislative jurisdiction to fund and maintain the action, and was only permitted to participate in the action as a plaintiff or as a co-plaintiff. ... [read more]

Thursday, October 27, 2016 @ 08:00 PM

Wills, Estates & Trusts Law - Wills - Revocation - By operation of law - By marriage - Exceptions - Wills made in contemplation of marriage

Appeal by a beneficiary, Dawn, from a finding that the testator’s will was revoked by marriage. The testator, Roy, died in 2012. He was survived by his spouse, Paulette, and two children from his first marriage, Shayne and Dawn. In 1997, Roy executed a will in which Shayne and Dawn were appointed as executors and beneficiaries of the residue of the estate in equal shares. In August or September 1998, Roy and Paulette began living together. In August 1998, Roy executed a second will which was identical to the 1997 will with the exception that Paulette was to receive Roy’s cabin and furniture and contents of Roy’s home. Roy and Paulette married in 2012 after Roy was diagnosed with cancer. He died less than a month later. Paulette commenced an application to be appointed as administrator of Roy’s estate based on her assertion that Roy died intestate, as his 1998 will was revoked by their 2012 marriage. Dawn sought to sustain the 1998 will arguing that it was not revoked by s. 17(1)(a) of the Wills Act, 1996, because of the plain meaning of s. 17(3). The chambers judge held that s. 17(3) applied only where a will was made after two years of cohabitation and therefore s. 17(1)(a) was given full effect. As a result, she found that the 1998 will was revoked upon the marriage of Roy and Paulette. ... [read more]