Estate Litigation Blog
by Mitchell Rattner, Published: June 06, 2016
Amendments to the Income Tax Act (R.S.C., 1985, c. 1 (5th Supp.)) (“ITA”), which came into effect on January 1, 2016, stipulate that the income and realized capital gains of testamentary trusts will now be taxed at the highest marginal rate (29%), but for two key exceptions.
Exception #1: Graduated Rate Estate
Graduated Rate Estate (“GRE”) is defined in section 248(1) of the ITA, and per the new tax regime, is an exception to the new mandate that trusts are taxed at 29%. In order to benefit from the graduated rate, the estate must be designated as a GRE in the estate’s first tax return (T3), beginning after taxation year 2015. The income tax return must include the individual’s social insurance number for the given taxation year and all prior taxation years that ended after 2015. The estate must be a testamentary trust that arose on and as a consequence of the individual’s death, and it must be the only estate designated as a GRE for a taxation year beginning after 2015. Finally, the eligibility of the estate to be designated as a GRE and taxed accordingly, expires 36 months after the death of the individual.
Exception #2: Qualified Disability Trust
Qualified Disability Trust (“QDT”) is defined in section 122(3) of the ITA, and is another exception to the 29% rate at which other trusts are now taxed. As with GREs, the QDT must be a testamentary trust such that it arose on and as consequence of the individual’s death, and further, the trust must be resident in Canada for the given taxation year. The trust requires that there must be a joint election in the T3 with one or more of the ‘electing beneficiaries,’ and the electing beneficiary’s/ies’ social insurance number/s must be recorded in the election. The electing beneficiary must be named personally as a beneficiary of the trust by the trust instrument. The electing beneficiary is only allowed to elect one trust in each given taxation year to be the Qualified Disability Trust. Most importantly, in order to qualify as an electing beneficiary, the individual must be eligible for the Disability Tax Credit (“DTC”).
The DTC is a non-refundable tax credit that is available for persons with disabilities or for those that support them. The qualifications for the Disability Tax Credit are as follows, per section 118.3(1)(a) and (b) of the ITA:
· The individual must have an impairment of mental of physical function/s that is prolonged (12 months or more);
· The individuals’ impairment of mental or physical function/s must be severe such that it restricts him or her at least 90% of the time; and
· The severe and prolonged impairment of mental or physical function/s must be certified by a physician using Form T2201, Disability Tax Credit Certificate.
A QDT need not be comprised entirely of electing beneficiaries; it only needs a minimum of one electing beneficiary to be qualified accordingly.
However, 122(2) of the ITA provides for a recovery tax where QDT status is lost for a particular year. This would occur when there is a capital distribution made to a non-electing beneficiary after a given year`s income had already been taxed at the graduated rate. The recovery tax claws back any tax savings, by, roughly, taxing the trust the amount that would have been payable in the previous year had it been subject to the highest marginal rate, excluding the amount of any capital that was subsequently distributed to any electing beneficiaries.
The recovery tax will also apply when the trust ceases, in a given year, to have among its beneficiaries any individuals who previously were electing beneficiaries, or when the trust ceases, in a given year, to be a resident of Canada. The former condition includes the death of the last living electing beneficiary.
The QDT, as an estate planning tool, has several limitations, not the least of which is that only one testamentary trust can be designated as a QDT. In the case where an individual is a named beneficiary of multiple trusts – for example, one testamentary trust established by a grandparent, and one established by a parent – the individual will have to elect as between the two trusts which should be designated as the QDT and subject to graduated rate taxation. Further, as a given trust is subject to recovery tax in the year it ceases to be designated as a QDT, it would be in the interest of the electing beneficiary not to change his or her election too frequently, unless the poor performance of a particular QDT necessitates the change to another. In order to maximize the benefit for a potential electing beneficiary, family and/or other grantors of trusts intended for eligible beneficiaries should consider cooperating in channeling assets into the possession of a single testator, to the extent possible, and where family relationships so allow. Further, the CRA stipulates that a valid testamentary trust cannot include property contributed to it other than by a deceased individual as a consequence of the individual’s death [s. 108(1) of the ITA], so caution should be afforded to ensure that the testamentary trust intended to be designated as the QDT is not tainted.
The implementation of these estate planning strategies is complicated, and it is recommended that you consult with a lawyer to assist with your estate planning needs.
by Robin Spurr, Published: April 25, 2016
In this particular case, a door-to-door sales company allegedly induced an elderly woman with Alzheimer’s disease to sign unfavourable contracts for heating/air-conditioning services locking her in for the next 15 years. According to her son, the woman was diagnosed with Alzheimer’s disease two years before the contract was signed, and was showing clear signs of forgetfulness and delusion. The son has taken legal action in Small Claims Court to have the contract declared void. The sales company has brought its own claim against the woman for breach of contract. These allegations have not been proven in court.
Whether the family in this situation succeeds in court or not, the fact is that this type of situation happens all the time. Whether it is a door-to-door salesperson, a “helpful” neighbour, or leeching family members, elderly and incapable people are frequently induced into signing contracts or giving gifts when they lack the capacity to understand the consequences of such actions.
In order to sign contracts or give gifts, the law states that the person must be able to appreciate the reasonably foreseeable consequences of a decision, or lack of decision, to enter into the contract. There is a presumption that everyone over the age of 18 has that capacity. However, that presumption does not apply where the other party to the contract has reasonable grounds to believe the person is incapable of giving or refusing consent. There are a number of factors which could lead to the person having “reasonable grounds” to believe that the person entering into the contract does not have capacity, for example if they show signs of confusion or disorientation, or if the other person is aware of a diagnosis/capacity issues, even if symptoms are not being exhibited at that moment.
In the case reported by CBC, after the son found out about the contract signed by his mom, he contacted the company directly and explained that his mother did not have the capacity to enter into a contract. In our experience, that kind of direct action can be effective and can result in the incapable person being released from the contract. In other situations however, such as the current case, it does not work. In that case, legal action can be taken. As in the CBC case, the son sought legal advice and commenced a claim against the sales company. Taking proactive steps and seeking the necessary advice can lead to getting the contract voided and restoring any money lost as a result.
by Rob Levesque, Published: March 08, 2016
Last year we blogged about Spence v. BMO Trust Company, a case that was causing a sitr in the estates and trusts bar.
In Spence, the testator made a will that explicity disinherited his daughter. The daugher sought to set aside the will on the grounds that the testator's motives for disinheriting her were fundamentally racist: that the testator, who was black, disinherited her because he was displeased that she had conceived a chlld with a white man. The judge who heard the daughter's application accepted that the testator had been motivated by his racist views, and held that this evidence was sufficent to render the will invalid, marking the first time in canadian legal history that a will has been set aside on the basis of discriminatory views held by a testator.
The application judge's decision caused such a commotion among estates lawyers because it contradicted the well established principle of testamentary freedom -- that a testator is free to dispose of his estate as he chooses, for such reasons as he sees fit. If the application judge was correct, then it would mean that testamentary freedom is limited by the Court's view of what is or is not against "public policy".
The Court of Appeal has now weighed in on the Spence case, and has overturned the application judge's decision. In doing so, the Court reaffirmed that in Ontario, testators have the freedom to dispose of their estate as they see fit. This freedom includes the right to disinherit a child for reasons that are explicitly discriminatroy. Thus, the Court held that, even if the testator's will had explilcity referred to a discriminatory reason for disinheriting his daughter, it would not have been open to the application judge to set it aside.
by Robin Spurr, Published: December 23, 2015
Schnurr Kirsh Schnurr Oelbaum Tator LLP is proud to announce that once again our partners have been recognized by their peers in the 2016 Edition of The Best Lawyers in Canada in the practice area of Trusts and Estates.
by Robin Spurr, Published: November 06, 2015
Scalia v. Scalia is a Court of Appeal decision, which provides guidance for Power of Attorney disputes, specifically the scope of the attorney for property’s authority with respect to joint assets, as well as the cost consequences for an unreasonable attorney for property. This was an appeal involving a dispute over the financial affairs of Joe Scalia. The dispute was between Joe’s son from his first marriage, John Scalia, and Joe’s widow and second wife, Pina Scalia.
Joe developed Alzheimer’s disease and was moved into a long-term care home in 2012 when John took over many of Joe’s affairs. John became concerned that Pina was diverting funds that belonged to Joe. John sought financial information from Pina about the whereabouts of certain monies, and information about Pina’s personal finances. When that information was not forthcoming, John emptied the joint account held by Pina and Joe and moved the funds into a trust in Joe’s name alone to which Pina did not have access. These funds were subsequently frozen by the bank as a result of the dispute. John also stopped depositing Joe’s pension income into the joint account so that despite the fact that they had always shared income and expenses equally, by the end of 2012 Pina was receiving little to no income from Joe.
In 2013, John, acting as Joe’s litigation guardian, commenced an application seeking, among other things, that Pina deliver information about her personal finances; and that she account for the rental proceeds and other funds from her and Joe’s joint account. Pina then filed her own application and sought among other things, the removal of John as Joe’s Power of Attorney; an order that the frozen funds be released back into her and Joe’s account, and an order for support from Joe pursuant to the Family Law Act.
The application judge dismissed Joe’s application and granted Pina’s application, in part. In dealing with costs, the application judge found that John had acted in bad faith and his conduct had led to these adversarial proceedings that split the family. The judge relied on the Substitute Decisions Act to find that John had a fiduciary duty to act with integrity and in good faith. By unilaterally withdrawing funds from the joint account and holding back support from Pina, the application judge found John had not acted in Joe’s best interests. For these reasons, the costs of Pina’s application were ordered to be paid on a substantial indemnity basis by John personally.
John appealed the application judge’s decision and was successful on two of the three substantive grounds of appeal. However, the Court of Appeal declined to overturn the cost award made against him personally, even though the panel found that John’s conduct was not considered bad faith.
The court set out the test for bad faith in the family law context, which is that the behaviour must be carried out with the intent to inflict financial or emotional harm, or to deceive the parties or the court. However, the court found that many of the facts the application judge relied on to find bad faith on John’s part could not stand, and as such John’s conduct on the record did not meet the threshold for bad faith.
Regardless, however, John, as a fiduciary, owed a duty to Joe to act in his best interests. The court found that the litigation was of no benefit to Joe. Rather, the litigation was the result of John’s ill-advised handling of Joe’s affairs. The litigation was disproportionately costly and was not a reasonable reaction to John’s concern about his father’s finances. The court of appeal went further to admonish Joe for his actions. As the application judge had noted, instead of assisting the family to resolve the issues at stake, John’s conduct turned the matter into an unnecessarily brittle and adversarial proceeding that split the family.
This Court of Appeal decision provides us with several insights regarding what Attorneys for Property can do with joint assets, specifically real property and bank accounts. Most notably though, the court made it clear that in litigation the Attorney will be held to standard of conduct that must be in line with his role as fiduciary. Despite the Attorney being successful on two of the three substantive grounds of the appeal and indeed clawed money back into the estate, the court still declined to overturn the cost award. This is a lesson to Attorneys for Property faced with contentious family disputes – they must remember that their fiduciary obligation in litigation is not solely a question of financial benefit for the incapable person. Rather, the Attorney must consider what is in the person’s best interests overall, which may include mending family ties and settling at an early stage. Otherwise, unreasonable conduct could result in the Attorneys finding themselves personally liable for the legal costs.
by Robin Spurr, Published: September 19, 2015
In an effort to streamline the litigation process and free up much needed court resources, the Rules of Civil Procedure were amended as of January 1, 2015 to provide that the Registrar shall dismiss an action if it has not been set down for trial within 5 years.
This dismissal for delay provision is appealing in that it forces litigants to bring matters before the court in a timely manner and not to delay the proceedings unnecessarily. However, the recent case of Michie v. Turalinski demonstrates how this rule is, unfortunately, not universally applicable.
In this case before Hon. Justice Mesbur in Toronto, the daughter of the deceased brought an application to compel the appointed estate trustee without a will, the applicant’s brother, to produce a statement of assets of the estate. Despite the application having been brought in 2011 and the existence of an Order Giving Directions setting out a timetable for the application, by August 2015, no cross-examinations had taken place, let alone a hearing date set.
The respondent brought a motion to dismiss the application for delay based on the new Rules. Unfortunately, the Court found against the respondent and did not order the application be dismissed.
The Court gave two reasons. The first was that the relevant rule, 24.01 of the Rules of Civil Procedure, sets out the circumstances in which the Court may dismiss an action for delay applied only to actions and not to applications. Additionally, the Court found that even if Rule 24.01 did apply, the new rule 48.14 which provides that the Registrar shall dismiss an action if it has not been set down for trial within 5 years, was not met in this case as it had only been 4 years.
This case leaves many questions unanswered. Particularly, how does one effect the dismissal of an application in the event one or both parties refuse to cooperate to move the application along. Litigation is a time-consuming process as it is and there should be limits imposed on the time a party can take to bring an application before the Court for a hearing in the same manner an action can be dismissed for delay.
by Elizabeth Bozek, Published: June 05, 2015
Elizabeth Bozek will be instructing the Wills/Estates/Trusts Bar Exam Prep Course offered by the "Centre for the Legal Profession" and the "Internationally Trained Lawyers Program" at the University of Toronto, Faculty of Law. The Wills/Estates/Trusts course will be offered on Friday, June 5, 2015 at the University of Toronto, Faculty of Law, from 5:30 - 10:00pm.
by Robin Spurr, Published: March 06, 2015
We congratulate our friend and former colleague Susan Woodley on her judicial appointment to the Ontario Superior Court of Justice.
We are pleased to announce that Schnurr Kirsh Schnurr Oelbaum Tator LLP will take over carriage of Susan’s Estate, Trust and Guardianship practice. We will have an additional office at 55 Temperance Street, Bowmanville, Ontario. We look forward to serving the community of Bowmanville and the County of Durham.
by Robin Spurr, Published: February 27, 2015
The recent decision in Spence v. BMO Trust Company raises very interesting questions about testamentary freedom and the power of the courts to remedy wills which contravene public policy.
In this case, the testator, Rector Emmanuel Spence, executed a will which disinherits his daughter Verolin in favour of his estranged daughter, Donna and her two kids. Verolin challenged the will on the grounds that it was void for public policy reasons and argued that it should be set aside. Verolin asserted that the only reason she was written out of the will was because her father was against her having a child with a man of a different race.
When Donna and Verolin were children, their parents separated and each of the girls went to live with one of the parents. Verolin lived with her father, and Donna lived with her mother. Neither the deceased nor Verolin had any contact with Donna from that time on. Verolin continued to have a very close relationship with her father for years. However, he cut off all contact with her the moment he found out that she was pregnant with a child whose father was Caucasian.
Uncontested affidavit evidence showed that the only reason the deceased stopped speaking to Verolin and disinherited her from his will was because of the race of her child. Verolin argued that this underlying reason for her being written out of the will was racist and therefore against public policy.
If you ask 100 people on the street whether you can do what you want in your will, 99 of them would say “yes”. In reality, wills are subject to court intervention for a variety of reasons, including not providing for dependants or because the conditions of the will are void for vagueness. Occasionally clauses in wills are found to be void because they are against public policy, for example leaving a gift to a grandson but only if he remains Catholic and does not marry a woman who has been divorced. It’s easy to see how society would not want to enforce that kind of clause – it is blatant discrimination based on religion and gender.
In the Spence case, Verolin argued that the racist underpinnings of her father’s will result in the will being offensive to society’s sensibilities. The court agreed and set aside the entire will aside.
It is easy to see how setting aside the will is an attractive position to take. There is no question that Mr. Spence was a racist and repugnant man, and his treatment of his daughter is wildly offensive to our moral sensibilities. And it is in the public’s interest to squash out such racist views in our society and to not compel an estate trustee to give effect to the distasteful whims of a racist man.
However, this decision departs from the jurisprudence on public policy cases.
There are two very striking things about this decision:
1) The court goes behind what is written in the will to look at the intention of the testator; and
2) The entire will is found to be void, rather than only striking out a clause of the will.
In past jurisprudence, the courts struck out specific conditions or phrases of wills or trust documents because the condition placed on a gift was offensive. The courts found that they could not compel an estate trustee to do something was against the public interest. The subject of these cases has always been the wording on the face of the will or trust document.
The court in Spence stretched the analysis of previous case law to look at the intention of the testator and the will as a whole beyond what was apparent on the face of the will. There does not appear to be anything in the case law cited by the court that would allow for such an undertaking.
There are compelling reasons for why such an undertaking should not be done by the courts. It is a significant departure from established principles of testamentary freedom and would open up the floodgates of litigation.
If public policy considerations are imposed on private familial testamentary gifts that are set out without conditions, there may be no limit on the discrimination cases that will appear before the courts. Parents will be left with no alternative other than to divide their estate equally between their children.
For example, what if a parent did not leave a gift, or a sufficient enough gift, for an independent adult child because the child struggled with a drug addiction and was liable to squander his inheritance? Addiction is a mental illness and therefore the will may be found to be discriminatory on the basis on disability.
Or, in many cultures it is customary to give the eldest son a larger inheritance – this could be found to be discrimination based on sex.
Undertaking to make sure the public’s interest and society’s morals are upheld is always a valiant endeavour, but we must not lose sight of the testamentary freedom afforded to individuals to deal with their affairs as they see fit, even if we may disagree. BMO Trust Company is appealing the decision so it will be interesting to see how the Court of Appeal deals with these competing principles.
by Robin Spurr, Published: January 30, 2015
We are very excited to announce that Schnurr Kirsh Schnurr Oelbaum Tator LLP has been named one of the Top 5 Boutique Wills, Trusts and Estates firms in Canada by Canadian Lawyer magazine! The list is compiled and voted on by lawyers across Canada. We are grateful to our peers for the recognition and honoured to have earned their confidence.
by Elizabeth Bozek, Published: January 05, 2015
On January 1, 2015, Regulations came into effect for the Estate Administration Tax Act, 1998 (the “EATA”). These new Regulations apply to all applications for a Certificate of Appointment for an Estate Trustee as of January 1st.
The following information is now required in an application for a Certificate of Appointment:
- The information that is required under subsection 4.1(2) of the EATA must be filed in a prescribed form within 90 days of applying for a Certificate of Appointment.
- This return must include a complete list of all assets used to determine the value of the estate, including the value of each asset and particulars about the types of assets.
- If the representative obtains additional information that was not provided in said return, an updated return must be filed no later than 30 days after the representative obtains such information.
by Rob Levesque, Published: November 15, 2014
It can be comforting to think of the law as an objective system that produces consistent, predictable results. However, judges aren't computers, and different judges can interpret the same facts and the same law in different ways, producing totally different outcomes.
It can be particularly difficult to predict the outcome of a dependant support application brought under Part V of the Succession Law Reform Act. Determining what constitutes "adequate support" of a dependant spouse or child is not an exact science, and raises questions that don't have easy answers. How do you place a value on a spouse's relationship with the deceased? How can you treat the deceased's dependants and other family members equitably, having regard to their legal and moral claims against the estate? While judges have developed various rules and principles that apply to dependant support claims, the fact remains that different judges will reach different conclusions based on the same facts and law.
The recent case of Quinn v. Carrigan 2014 ONSC 5682 is a perfect example of this phenomenon.
The late Mr. Carrigan left assets with a total value of approximately $2.4 million to his wife and two children, and nothing to his common law spouse of eight years, Ms. Quinn. Not surprisingly, Ms. Quinn retained a lawyer and made a claim against Mr. Carrigan's estate for dependant support. Ms. Quinn's claim went to trial, and the Court concluded that she was entitled to receive the deceased's pension death benefit, worth about $1.4 million.
The deceased's wife appealed the Court's judgment to the Court of Appeal. The Court of Appeal found that the trial judge had erred in concluding that Ms. Quinn was entitled to the death benefit, and accordingly ordered a second trial of her dependant support claim. At the end of the second trial, the Court concluded that Ms. Quinn was entitled to a lump sum payment of $350,000.00.
Ms. Quinn appealed the second judgment to the Divisional Court. The Divisional Court held that the judge in the second trial had erred in calculating Ms. Quinn's spousal support payment. However, rather than ordering a third trial, the Divisional Court conducted its own analysis of the dependant support claim, ultimately concluding that Ms. Quinn was entitled to a lump sum payment of $750,000.00.
In the end, Ms. Quinn had three separate hearings to determine her entitlement to a share of the deceased’s estate, and got three very different results. The lesson for potential litigants is clear. As expressed by Justice Corbett, who delivered the reasons of the Divisional Court in this case: "no litigation outcome is inevitable".
by Robin Spurr, Published: November 07, 2014
There has been a lot of buzz in the legal community recently about the case of Leibel v. Leibel (reported as Leibel v. Lewis), which was decided by the Honourable Justice Greer in August of this year. The reason for all the legal chatter is that this case clarified whether there is a limitation period on will challenges. It turns out, according to Justice Greer, that the regular two-year limitation period set out in the Limitations Act, 2002 applies equally to will challenges as it does to any other civil litigation.
This case concerned a will challenge commenced by the son, Blake, more than two years after his mother, Eleanor, had died. Blake was an adult and lived in California. Eleanor had another a son, Cody, who was also an adult and living in California. Eleanor was married to Lorne, but they had been separated for 30 years at the time Eleanor died. When they separated, Cody went to live with Lorne and Blake lived with Eleanor.
In previous wills, Eleanor had left her considerable estate solely to Blake. In her last will, and the one immediately preceding it, Eleanor gave the majority of her estate to Blake, but included a sizeable inheritance for Cody. Blake contested Eleanor’s last will on the grounds that his mother was unduly influenced and/or lacked capacity to make the will. Eleanor died in June 2011, and Blake commenced his application in September 2013. Justice Greer ultimately held that Blake’s claim was out of time as it was more than two years after Eleanor’s death.
There has been a lot written about this decision and how it reconciles with past decisions and what this means going forward. These are all interesting and relevant discussions to have, but I think it is also important to look not just at the law of this case but also the facts and how they contributed to the outcome of the case.
At the recent 17th Annual Estates and Trusts Summit, Felice Kirsh spoke to estates practitioners about the Leibel case and highlighted why this particular fact pattern made it the prime case for this ruling. First and foremost, Blake did not attend his mother’s funeral. This is very poor form, especially when you then go before the court claiming that you did not get enough money from your mother’s estate. As Felice said, this is not the way to get the court’s sympathy. Secondly, Blake was active in helping the estate trustees liquidize estate assets in order to receive cash from the estate. He actively participated in the selling of Eleanor’s Toronto home and a condo in Florida, both of which were gifted to him in the will, and he accepted the several millions of dollars that the properties sold for. While there is the legal issue of estoppel that comes into play as result of these actions, it is also just common sense that you should not take everything you can from the estate and then turn around and ask the court to set aside the will because you would now like some more.
These facts were obviously not favourable for Blake and likely worked against him in this case. The moral of the story is that if you are going to challenge a will, make sure you do it within two years of the death of the testator, and always go to the funeral.
by Rob Levesque, Published: October 15, 2014
In the administration of any estate, one of the estate trustee's first jobs is to identify potential creditors who might advance claims against the estate. The general wisdom has always been that an estate trustee should make sure that he or she has held back sufficent funds from the estate to satisfy the claims of all potential creditors before making distributions to the beneficiaries, heirs and dependants of the estate. It may therefore come as a surprise to many lawyers that in a recent case, Grieco v. Grieco Estate, 2013 ONSC 2465, the Court held that dependant support claims have priority over the claims of potential creditors with pending, but unproven claims.
In the Grieco case, the deceased’s ex-wife had an outstanding equalization claim against the deceased’s estate which pre-dated his death. The deceased’s common law spouse and two of the deceased’s adult children bought dependant support claims against the estate. The parties settled their claims at mediation, and obtained a consent judgment providing for the distribution of lump sum equalization and dependant support payments.
The estate trustee was wary of making the payments pursuant to the consent judgment because a number of potential creditors had come forward with claims against the estate. While the claims of the creditors had yet to be proven, if the estate trustee proceeded with the distribution of the dependant support and equalization payments pursuant to the consent judgment, there would be no money left in the estate to satisfy a possible judgment against the estate by the creditors. Accordingly, the estate trustee sought the direction of the Court.
The Court held that the lump sum equalization payment to the ex-wife and the lump sum dependant support payment to the common law spouse took priority over the claims of the potential creditors. In doing so, the Court referred to section 4(1) of the Creditor’s Relief Act, 1990 and Section 2(3) of its successor legislation the the Creditor’s Relief Act, 2010. The Court held that both the 1990 Act and the current Act, “maintain the priority of support claims over virtually all other claims”, and that this priority extended to dependant support orders made pursuant to the Succession Law Reform Act. Accordingly the common law spouse was entitled to recieve her lump sum payment from the estate in priority to the potential creditors.
Furthermore, given that orders made for the support of dependants have priority over debts owing to creditors under section 2(3) of the Creditors' Relief Act; and given that a spouses’ equalization entitlement has priority over orders for the support of dependants other than children of the deceased under subsection 6(12) of the Family Law Act; the Court concluded that the ex-wife’s equalization payment had priority over the claims of the potential creditors. Alternatively, the Court found that the wife was also a dependant of the estate and was entitled to receive her lump sum payment in priority to the creditors on that basis as well.
The Grieco case raises difficult issues for trustees facing competing claims by surviving spouses, dependants of the estate, and other potential creditors of the estate. While the case appears to stand for the proposition that the claims of dependants have priority over the claims of other potential creditors of the estate pursuant to the Creditor’s Relief Act, lawyers who are advising estate trustees should treat the decision with caution. There are currently no other reported cases dealing with the interaction between the Creditors' Relief Act and equalization and support claims in the estates context.
by Robin Spurr, Published: October 03, 2014
Automatic vesting is often an illusory concept and almost always comes as a surprise to the lay estate trustee. The rule as set out in the Estates Administration Act (EAA) is that real property vests in the beneficiaries three years after the death of the testator. Vesting means taking ownership of something. Sometimes a gift is vested only in interest before someone actually takes possession of it. When an interest vests, that is the moment someone has a legal claim of ownership. Once a property vests in the beneficiary, the beneficiary becomes the owner of the property even if it is still technically registered in the name of the deceased person or the estate trustee. After the property becomes vested in the beneficiary, the estate trustee is limited in what he or she can do with the property.
In the recent Ontario Court of Appeal decision of Di Michele v. Di Michele 2014 ONCA 261, the court clarified the circumstances in which automatic vesting will occur. This was a case of an estate trustee (who was also a beneficiary) who mortgaged the estate property to secure his personal debts more than three years after the death of the testator. The estate trustee’s creditor applied to enforce the mortgage and sell the estate property. The other estate beneficiaries tried to block the sale of the estate’s real property by the creditor in the enforcement proceedings on the grounds that the estate trustee had no right to give the mortgage to his creditor in the first place, arguing that the property had vested in them.
At trial, the Court agreed with the beneficiaries that the property had vested in the them pursuant to the EAA and therefore the mortgage was only enforceable against the estate trustee’s 1/3 interest in the property, and not the other 2/3 which had vested in the other two beneficiaries. However, on appeal, the Court overturned this finding. The Court of Appeal held that the mortgage applied to the entire property.
The Court of Appeal concluded that when a will includes a clause allowing the estate trustee to postpone the sale of property or to deal with property as the estate trustee sees fit, as many standard wills do (and this will in fact did), the automatic vesting provisions of the EAA do not apply. If they did, it would limit the power given to the estate trustee in the will to use his discretion to deal with the property, and court is not inclined to do that. The rationale being that section 10 of the EAA states that nothing in the legislation should interfere with the powers given to the estate trustee in the will.
Secondly, the Court decided that only a beneficiary who is specifically gifted property by a testator in his will benefits from automatic vesting. The Court of Appeal held that a residuary interest (even in an estate that has real property in the residue) is not enough of an interest in the property for automatic vesting to apply. The beneficiary can only claim a property interest if the will gives the particular property to the beneficiary as a specific gift.
What we can take away from this case is that automatic vesting is not as widely applicable as we once thought. A will can be drafted to prevent the automatic vesting from occurring and prevent the unsuspecting estate trustee from being caught by the rule during a difficult or lengthy administration.
by Robin Spurr, Published: October 03, 2014
Elizabeth Bozek will be the Chair of the Section Program presented by the Ontario Bar Association, Estates & Trusts Section, on November 25, 2014 on "Complex Passing of Accounts". The panel will review how estate litigators should approach complicated passings of accounts by estate trustees and how to avoid the pitfalls that come with complex estate administrations.
by Robin Spurr, Published: September 25, 2014
On September 24, 2014, Jordan Oelbaum spoke at "Managing, Mediating and Litigating Estates Disputes", a conference held at Osgoode Hall Law School. In his paper, "Discovery and Settlement in the Estate Case: Preparing for Settlement", Jordan explores the discovery and settlement processes in light of the Court's recent comments on the need for proportionality in estates cases.
by Rob Levesque, Published: September 18, 2014
On September 16, 2014, Felice Kirsh gave a talk to a group of financial advisors at CIBC Wood Gundy titled "Keeping the Financial Advisor Out of Litigation". Topics covered included taking instructions from clients; the importance of keeping a well-documented file; and ensuring that advice given is limited to the advisor's field of expertise.
by Rob Levesque, Published: September 17, 2014
by Rob Levesque, Published: September 17, 2014
On Septermber 24, 2014, Felice Kirsh will chair a conference at Osgoode Hall Law School, titled "Managing, Mediating and Litigating Estates Disputes". The conference will cover all stages of an estate litigation matter, from the initial client interview, to discovery, to mediation to trial.
by Rob Levesque, Published: September 08, 2014
by Elizabeth Bozek, Published: June 16, 2014
Elizabeth Bozek instructed the Wills/Estates/Trusts Bar Exam Prep Course offered by the "Centre for the Legal Profession" and the "Internationally Trained Lawyers Program" at the University of Toronto, Faculty of Law. The Wills/Estates/Trusts course was offered on Friday, June 13, 2014 at the University of Toronto, Faculty of Law, from 5:30 - 10:00pm.
by Rob Levesque, Published: May 30, 2014
Sandra Schnurr’s letter to the editor appeared in a recent edition of the Toronto Star, commenting on the Ontario Superior Court of Justice decision of Ciccone v. Côté 94 E.T.R. (3d) 106. The case involves a bitter custody battle between the parents of a 42-year-old developmentally disabled woman who has the mentality of a 6-year-old. Despite their animosity, the parents agree on one point: the best place for their daughter is a group home.
However, the judge notes that, “Isabella has been on a wait list for group home placement dating back to 2008. Inadequate funding by the government of Ontario has created insufficient capacity of this form of community support across the province resulting in wait times of between 5 and 15 years. The evidence is that there are currently 19,000 people waiting for such group home accommodation across Ontario.”
In view of the upcoming provincial election, Sandra’s letter challenges the party leaders to address the desperate shortage of group home space that is so urgently needed by our most vulnerable citizens.
by Rob Levesque, Published: May 15, 2014
Sandra Schnurr recently completed another rewarding year of supervising law students in the Wills Project of Pro Bono Students Canada. These future lawyers volunteer their time to provide wills and powers of attorney to qualifying members of the public.
by Rob Levesque, Published: April 16, 2014
Brian Schnurr, Felice Kirsh, Sandra Schnurr and Jordan Oelbaum has each been recognized as a "Leading Practitioner" in the field of Estate Litigation in the 2014 edition of the Canadian Legal Lexpert Directory.
by Rob Levesque, Published: April 14, 2014
Felice Kirsh was recently quoted in an article on AdvocateDaily.com. In "Choose a power of attorney you trust", Ms Kirsh explains that the first step in avoiding power of attorney fraud lies in who you appoint to take on the role. Continue reading here.
by Rob Levesque, Published: February 26, 2014
On February 25, 2014, Elizabeth Bozek chaired the a seminar entitled "Backgrounder on the Consent and Capacity Board", which was part of the Ontario Bar Association's Trusts and Estates Passport Series. Topics covered included:the role of the Consent and Capacity Board ("CCB"); the type of cases that appear before the CCB; tips on advocacy before the CCB, including how files are referred; and a review of recent decisions from the CCB, including the highly anticipated Rassouli decision from the Supreme Court of Canada.
by Rob Levesque, Published: February 04, 2014
Felice Kirsh was recently quoted in an article on AdvocateDaily.com. In "Consider whether a passing of accounts is worth it", Ms Kirsh emphasizes that beneficiaries of an estate should take time to consider, from a monetary point of view, what’s at stake before insisting on a passing of accounts. Continue reading here.
by Rob Levesque, Published: February 01, 2014
Brian A. Schnurr, Felice C. Kirsh and Jordan D. Oelbaum were recently recognized by their peers as three of the Best Lawyers in Canada for the year 2014 in the "Best Lawyers in Canada" survey for the specialty area of Trusts and Estates.
by Rob Levesque, Published: December 11, 2013
Felice Kirsh was recently quoted in an article on AdvocateDaily.com. In "When estate litigation gets tense, lawyers must stay cool", Ms. Kirsh explains that when an estate litigation scenario becomes heated or tense, it is incumbent upon the lawyer to remain calm and level-headed.
“The vast majority of cases are highly emotional because you’re dealing with family members. Family relationships are complex – they’ve lasted for many, many years,” says Kirsh. “There might be built-up tensions, grudges or jealousies that manifest themselves in this last battle over someone’s estate.” Continue reading here.
by Rob Levesque, Published: October 29, 2013
Sandra Schnurr will be instructing the Wills/Estates/Trusts Bar Exam Prep Course offered by the "Centre for the Legal Profession" and the "Internationally Trained Lawyers Program" at the University of Toronto, Faculty of Law. The Wills/Estates/Trusts course will be offered on Monday, November 11, 2013 at the University of Toronto, Faculty of Law, from 5:30 - 10:00pm. The full schedule can be found here, and instructor biographies are found here.
by Elizabeth Bozek, Published: August 24, 2013
An article about Felice Kirsh was posted on AdvocateDaily.com. In "Red flags help identify difficult clients early on", Ms Kirsh comments on how a lawyer can idenitify signs to determine if he or she should continue working with a difficult client. In the article, Ms. Kirsh suggests that: "When the client’s not following your instructions, when the client is second-guessing you all the time, when the client is making demands on you that just cannot be met … Sometimes the personalities just don’t match"
Ms Kirsh also advises that, "You have to really be sure the client realizes that you’re not doing this work anymore, and they’d better go get another lawyer because they have a court date in three weeks, or they have to get ready for discovery or the next step."
Ms. Kirsh's comments were first published in The Lawyers Weekly, at "Saying goodbye to the difficult client".
by Elizabeth Bozek, Published: July 17, 2013
An article about Felice Kirsh was posted on AdvocateDaily.com. In "Case a reminder to review estate plans", Ms Kirsh comments on the recent decision in Stevens v. Fisher. Justice DiTomaso ordered that a life insurance policy that had been owned by the deceased be given to his common-law spouse, and not the named beneficiary (the deceased's former common-law spouse). In the article, Ms. Kirsh is quoted as stating as follows:
“People do forget that they have old insurance policies – I’d say that’s common - and they forget who their beneficiaries are in all policies."
Ms Kirsh is also quoted as further stating, "That’s why it’s important for people to check – I’d say every year – who are the beneficiaries of your RRSP or your life insurance policy or your group life insurance policy and are you still OK with it?”
Ms. Kirsh's comments were first published in the Law Times, at "Court sends message about hiding from dependants".
by Elizabeth Bozek, Published: March 19, 2013
An article about Felice Kirsh was posted on AdvocateDaily.com. In "Decision reinforces difficulty removing estate trustees", Ms Kirsh comments on the recent decision in Hawkins v. Hawkins Estate. The Master refused to remove the estate trustee and noted that:
"In short it is the duty of the court to ensure the purpose of the trust is carried out and the testator's choice of trustes should not be lighly disturbed. Removal is essentially a last resort in cases where it can be shown that continuation in office will inevitably impede proper administration."
The decision provides a useful guideline in determining if a motion for removal of an estate trustee will be successful.
by Elizabeth Bozek, Published: March 19, 2013
An article about Felice Kirsh was posted on AdvocateDaily.com. In "Appointed attorneys have difficult job", an article Ms Kirsh wrote in The Lawyers Weekly, "Attorneys for property often under the microscope", was discussed in detail. This article was previously discussed on this blog; the blog post can be found here.
by Elizabeth Bozek, Published: March 18, 2013
Felice Kirsh authored an article published in the March 1, 2013 edition of The Lawyers Weekly. In "Attorneys for property often under the microscope", Ms Kirsh discusses the responsibilities of an attorney for property, including the duty to manage the incapable person's property in the best interests of that person, and the duty to keep accounts. Ms Kirsh also suggests individuals who have been named attorneys for property take the job seriously, spend time at the job and document all decisions made, time spent and issues considered.
by Elizabeth Bozek, Published: March 18, 2013
Elizabeth Bozek will be instructing the Wills/Estates/Trusts Bar Exam Prep Course offered by the "Centre for the Legal Profession" and the "Internationally Trained Lawyers Program" at the University of Toronto, Faculty of Law. The Wills/Estates/Trusts course will be offered on Tuesday, June 11, 2013 at the University of Toronto, Faculty of Law, from 5:30 - 10:00pm. The full schedule can be found here , and instructor biographies are found here.
by Elizabeth Bozek, Published: February 20, 2013
Sender Tator will be the Chair of the Section Program presented by the Ontario Bar Association, Estates & Trusts Section, on April 23, 2013 on "Trusts and Estates Law: Summary Judgment and Other Hot Topics in Estates Litigation". The panel will review how the changes to the summary judgment rules have impacted estate litigation, and the caselaw in this area. The panel will also review recent costs decision and other recent estate litigation cases in general, highlighting topics of general interest to estate litigators.
by Robin Spurr, Published: December 20, 2012
Brian A. Schnurr, Felice C. Kirsh and Jordan D. Oelbaum were recently recognized by their peers as three of the Best Lawyers in Canada for the year 2013 in the "Best Lawyers in Canada" survey for the specialty area of Trusts and Estates.
by Elizabeth Bozek, Published: December 20, 2012
The OBA Institute 2013 for Trusts and Estates Law, "Best Practices, Practical Tips, and Risk Management Strategies for Estate Planning" will be held at the Westin Harbour Castle Conference Centre, 2 Harbour Square, Toronto, on Thursday, February 7, 2013, from 1:30 to 4:50pm. Brian Schnurr will be a panelist during the discussion on "Tips for Success at Mediation".
The panel will discuss the following issues:
- Professional obligations of counsel going into mediation
- At which stage should the parties go to mediation?
- Checklists for a successful mediation
- What must be in your Minutes of Settlement
by Elizabeth Bozek, Published: October 22, 2012
Elizabeth Bozek will be instructing the Wills/Estates/Trusts Bar Exam Prep Course offered by the "Centre for the Legal Profession" and the "Internationally Trained Lawyers Program" at the University of Toronto, Faculty of Law. The Wills/Estates/Trusts course will be offered on Tuesday, November 20, 2012 at the Moot Court Room in the Flavelle Building, at the University of Toronto, Faculty of Law, from 5:30 - 10:00pm. The full schedule can be found here, and instructor biographies are found here.
by Elizabeth Bozek, Published: October 17, 2012
Brian Schnurr and Felice Kirsh will present a paper on November 14, 2012 at the 15th annual Estates and Trusts Summit on the issue of when an individual can be compelled to submit to a capacity assessment against his or her will. Their paper will review the legislation and jurisprudence relating to court-ordered capacity assessments.
by Elizabeth Bozek, Published: July 16, 2012
Felice Kirsh can be seen discussing the benefits of medation in estates disputes on AdvocateDailyTV. She notes the benefits of mediation, which include:
(1) the case will be resolved much sooner than if it were to proceed to trial;
(2) the client will incur less costs by settling at mediation than proceeding to trial; and
(3) the parties are free to craft a settlement that may deal with the issues in a more creative way than would a judgment by the court.
Nine out of ten estate litigation cases settle at mediation.
by Elizabeth Bozek, Published: May 30, 2012
Last night, the Ontario Bar Association hosted the annual Estates and Trusts Awards Dinner. The Honourable Madam Justice Greer was the recipient of the OBA Award for Trusts and Excellence in Trusts and Estates. In her acceptance speech, Justice Greer inspired the attendees with her thoughts, and asked everyone to do the following: be brief in submissions in court; be a mentor to those more junior than you; and be kind.
Schnurr Kirsh Schnurr Oelbaum Tator LLP was a Gold Sponsor of the event, which was held at the Distillery District in Toronto.
by Elizabeth Bozek, Published: May 23, 2012
Felice Kirsh was quoted in an article published on AdvocateDaily.com, entitled “Resist ‘ruling from the grave’, says Felice Kirsh”. She cautions testators who may try to exert control over their estates long after they die, and suggests they seriously consider the potential issues arising from ongoing estate administration and the exercise of trustee discretion.
by Elizabeth Bozek, Published: April 30, 2012
Elizabeth Bozek will be instructing the Wills/Estates/Trusts Bar Exam Prep Course offered by the "Centre for the Legal Profession" and the "Internationally Trained Lawyers Program" at the University of Toronto, Faculty of Law. Further information about the Prep Course can be found here. The Wills/Estates/Trusts course will be offered on Thursday, June 14, 2012 at the Solarium in Falconer's Hall at the University of Toronto, Faculty of Law, from 6:00 - 10:00pm. The full schedule can be found here, and instructor biographies are found here.
by Elizabeth Bozek, Published: April 27, 2012
Sender Tator presented at "The Annotated Guardianship Application 2012", presented at the Law Society of Upper Canada on April 24, 2012. Sender spoke on the annotated Notice of Application and the Management Plan. The seminar was very informative, with the materials providing a practical resource to use in the preparation of applications for both guardianship of the person and guardianship for property.
by Elizabeth Bozek, Published: April 27, 2012
Sender Tator chaired the "Dinner with your Honourable Estates List Judges" on April 24, 2012 at the OBA Conference Centre in Toronto. As usual, the dinner was well attended. Those present for the dinner appreciated the comments of The Honourable Madam Justice Pollak, The Honourable Mister Justice Whitaker and The Honourable Madam Justice Wilson, as they provided practical tips on how to navigate the procedure of the Estates List, and other helpful insights based on their view from the bench.
by Elizabeth Bozek, Published: April 10, 2012
Elizabeth Bozek wrote a Case Comment that was published in the March 2012 edition of Deadbeat, the newsletter of the Ontario Bar Association, Estates and Trusts section, on the Niziol v. Allen, 2011 ONSC 7457 (CanLII) decision. The court's legal analysis provides a useful summary of numerous grounds upon which the court may judge the validity of a holograph will, including the following:
(1) The holograph will met the requirements of section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26.
(2) The language used by the deceased was found to be testamentary in nature.
by Elizabeth Bozek, Published: March 26, 2012
Rob Levesque will be giving a case comment at the March 27, 2012 OBA Estates and Trusts Section Tax Lunch on Re Young Estate,  O.J. No. 206 (S.C.J.), a case that is noteworthy for its discussion of the functions of a corporate trustee, and the principles that apply to the compensation of corporate trustees.
by Elizabeth Bozek, Published: March 01, 2012
Felice Kirsh and Elizabeth Bozek co-authored an article published in the March 2, 2012 edition of The Lawyers Weekly. In "Uncertainty over trustee reimbursement", the correctness of the decision of the Honourable Justice Lofchik in DeLorenzo v. Beresh,  O.J. No. 4367, where he ordered the estate trustee to repay to the estate funds withdrawn to pay his ongoing legal fees, was called into question. This was because of the unreported leave to appeal motion heard by the Honourable Justice Lococo, who noted that,
“on general principle, it is open to serious debate whether an estate trustee should be ordered to repay legal fees paid by the estate on an interim bass relating to the passing of accounts, including where the accounts are contested by the beneficiaries, as in this case.”
Ms Kirsh was counsel for the estate trustee in the leave to appeal motion.
by Elizabeth Bozek, Published: February 29, 2012
Felice Kirsh was quoted in an article on AdvocateDaily.com entitled "Don’t rely on inheritance, Kirsh warns baby boomers", in which she advised that baby boomers should not rely on receiving windfalls from family members in their financial planning, but should instead "Plan your finances as if you're not going to inherit money". The full text of the article can be read here.
by Elizabeth Bozek, Published: February 17, 2012
Felice Kirsh was quoted in an article by Gretchen Drummie entitled "Will Power - Problems can arise over who gets the family cottage", that was included in the 2012 Legal Resource Guide, published in January 2012 by the publishers of Canadian Lawyer magazine. One issue that she notes is that lawyers are increasingly suggesting that parents have a family meeting to discuss how the family cottage will be divided in their estate plan, as the family cottage is a source of a great deal of conflict in estate litigation.
by Elizabeth Bozek, Published: February 13, 2012
Felice Kirsh can be seen providing advice on how to be a good client and have the best relationship possible with your estate litigation lawyer on AdvocateDailyTV. Her tips include:
- The client should be organized. At the initial consult meeting, the client should start from the beginning and provide the lawyer with a general overview of the facts. It is especially helpful when the client brings a chronology of the facts, a family tree and/or the court documents. These documents help the lawyer understand the facts and legal issues, and what they can do to help the client.
- The client should be receptive to the lawyer's advice.
- The client should understand that there are good and bad aspects of his or her case.
by Rob Levesque, Published: January 26, 2012
On January 24, 2012, Felice Kirsh made a presentation on "Trust Company Best Practicies - How to Manage Client Expectations & Reduce Risk" at CIBC Trust.
by Elizabeth Bozek, Published: January 12, 2012
Tags: sender tator
Sender Tator will be presenting a paper at the seminar “ The Annotated Guardianship Application 2012", hosted by the Law Society of Upper Canada on April 24, 2012 at the Donald Lamont Learning Centre, located at 130 Queen St. W. (Law Society of Upper Canada). His presentation will be on guardianship applications brought under the Succession Law Reform Act.
by Elizabeth Bozek, Published: November 16, 2011
Sender Tator will be chairing the Dinner with your Honourable Estates List Judges, which will be presented by the Ontario Bar Association on April 24, 2012 at the OBA Conference Centre in Toronto. The Dinner is part of the OBA Trusts & Estates Law Passport series, and is always an interesting evening where the Judges from the Toronto Estates List discuss procedural issues and recent cases in the areas of estate and mental incompetency litigation.
by Elizabeth Bozek, Published: November 10, 2011
Felice Kirsh and Elizabeth Bozek presented a paper entitled "Revisiting Testamentary Capacity" at the 14th Annual Estates and Trusts Summit, hosted by the Law Society of Upper Canada, on November 9, 2011. The Summit was, as always, well attended with many interesting presentations.
by Elizabeth Bozek, Published: September 29, 2011
Tags: will challenge
by Robin Spurr, Published: September 28, 2011
Brian A. Schnurr and Felice C. Kirsh were recently recognized by their peers as two of the Best Lawyers in Canada for the year 2012 in the "Best Lawyers in Canada" survey for the specialty area of Trusts and Estates.
by Elizabeth Bozek, Published: August 23, 2011
Jordan Oelbaum will be presenting a paper at the seminar "The Dependant's Support Application: from Notice of Application to Trial", hosted by the Ontario Bar Association on September 27, 2011 at the OBA Conference Centre. His paper will focus on preliminary considerations in bringing a dependant's support claim, including conflict issues, the retainer, limitation periods, and other initial steps and considerations.
by Elizabeth Bozek, Published: July 20, 2011
Brian Schnurr and Felice Kirsh will be presenting a paper at the 14th Annual Estates and Trusts Summit hosted by the Law Society of Upper Canada. Their paper will examine why testamentary capacity should be assessed as existing on a spectrum rather than there being a threshold, and how context can impact a finding of testamentary capacity.
by Elizabeth Bozek, Published: May 27, 2011
In the May 2011 edition of Deadbeat, the newsletter of the Ontario Bar Association Trusts and Estates section, is an article by Elizabeth Bozek on Su v. Lam, ONSC 1086 (CanLII).
by Elizabeth Bozek, Published: May 27, 2011
The Toronto Star posted a helpful article on what should be taken into consideration in choosing an Estate Trustee.
by Robin Spurr, Published: April 23, 2010
Brian A. Schnurr has been designated as 2011 Best Lawyers, Trust and Estates - Toronto. Only a single lawyer in each practice area is awarded this honour.
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