Archive for January, 2011

January 28, 2011

Dependents Relief Claims: You Can Have Two Spouses

Canadian jurisdictions allow the spouse of a deceased to make claims against the estate for support and interim support provided the test for entitlement and need are met. In Ontario, a “dependent” is defined by the Succession Law Reform Act to include a “spouse”, defined in part as either of two persons who are not married but have co-habited continuously for a period of not less than three years. But can a person have two such spouses?  Yes, according to a recent decision of the Ontario Superior Court of Justice. The court found that evidence that a deceased may have co-habited with two women in different homes for periods of time that overlap did not require the court to determine that one was a spouse and the other was not for purposes of support. Both could qualify.

Blair v. Cooke Estate

January 26, 2011

The Value of a Capacity Assessment

In preparing a will for an elderly person, a capacity assessment is a prudent consideration to ensure that the legal requirements of a valid will are met. However, an assessment can also cut short will challenges. Evidence of capacity by a qualified assessor has been determined by the Superior Court of Ontario to be sufficient grounds for summary judgment (ie. dismissal without a trial) ending a court will challenge, at least that part alleging lack of capacity. It may therefore be a good idea to consider an assessment not only when the age or medical condition of a testator may influence her capacity, but where family dynamics increase the likelihood of a will challenge.

Read the case: Quinlan v. Caron

January 25, 2011

An interesting primer on the basics of estate planning

January 25, 2011

Can a monitor be appointed by a Court to oversee the administration of the estate of a deceased by estate trustees?

In a recent decision of the Ontario Superior Court of Justice, the Court appointed a monitor to oversee the administration of the estate of an Ontario man by proposed estate trustees resident in the State of New York. The appointment was included in the Certificate of Appointment of Estate Trustee. The concept of a monitor, most familiar to insolvency practitioners, appears to be evolving in other areas of law. In this case, the appointment was a condition of a prospective surety that was not prepared to issue a bond to foreign estate trustees without supervision of the estate by an Ontario resident monitor. The appointment raises interesting questions, such as the liability of the monitor and his or her power should they disagree with the actions of the estate trustees. The order granting the Certificate of Appointment renders the monitor liable only for gross negligence or willful misconduct, implying that the monitor does not have the same fiduciary obligations of an estate trustee. Arguably, the restriction of liability is designed to reflect the restricted role of the monitor, as the order specifically precluded the monitor from taking possession of or otherwise dealing with estate assets.

January 25, 2011

So where do you live for estate purposes? Domicile can be a thorny issue.

In our mobile world, the issue of where a person lives, or is “domiciled”, when they die is not always straightforward. Recently, the Alberta Court of Appeal was required to apply the rules on domicile and to confirm the state of the law. The issue is important because domicile will determine which laws apply to the administration and distribution of an estate.

A person can have only one domicile at a time. You start with a “domicile of origin” (usually where you were born). That domicile can be displaced by a “domicile of choice”. Furthermore, a domicile of choice can be abandoned for another domicile.

Two factors come into play in determining domicile of choice. Firstly, a person must actually acquire a residence in a new place. Secondly, they must intend to permanently settle in that place.

The test for whether a person has abandoned a domicile of choice is similar. Firstly, a person must cease to live in a domicile of choice. Secondly, they must intend to permanently leave that place. Again, both are necessary. It is not sufficient to have the intention to leave but not do so. Similarly, it is not sufficient to leave the place without exhibiting an intention not to return.
Of course, these are all issues of fact which are determined on a case-by-case basis. Whether a person has taken or abandoned actual residence is generally not that difficult to determine. However, intention is rarely straightforward and must be determined by circumstances and surrounding facts, as the person whose intention is important will not be around to give evidence.

January 25, 2011

An interesting article in the Globe & Mail about the need (and for Toronto the requirement) for municipalities to recognize and deal appropriately with residents suffering from age-related dementia