Archive for February, 2013

February 27, 2013

DNA Testing in Estate Matters – How Far Can it Go?

How far can a Court go in ordering that individuals submit to DNA testing to determine whether a person is or is not the offspring of a deceased? Well – not so far as to order that a non-party to the dispute submit to testing.

In the Manitoba Court of Appeal case of Nandwani v. Nandwani, the plaintiff claimed that he was the sole son of the deceased (V). The defendants are some of V’s siblings and asserted that S, another sibling, was the plaintiff’s natural father. V died intestate with the result that the residue of his estate would go to the plaintiff if he was V’s son, and to the defendants if he was not. S was not a party to the court proceeding.

V and the plaintiff’s mother (J) were married when the plaintiff was born but V immigrated to Canada five months later. S began living with J and raised the plaintiff as if he were his own son. S and J married after V and J divorced. The plaintiff and S swore affidavits stating that the plaintiff was V’s son and the plaintiff relied on the rebuttable presumption that a child born during lawful wedlock is the legitimate child of the married couple. In an attempt to rebut the presumption by showing that S was the plaintiff’s natural father, the defendants brought a motion for an order that the plaintiff and S (resident in India) provide blood samples or swabs for the purpose of DNA testing.

The lower court granted the motion, finding that DNA testing was the most reliable and expeditious method to resolve the paternity issue. With respect to the plaintiff, the order was made under s. 62 of the Court of Queen’s Bench Act (Manitoba) (in Ontario s. 105 of the Courts of Justice Act), which permits the Court to order a physical examination of a party. “Physical examination” has been held to include the composition of blood (and therefore the means to access blood). As for S, the lower court made the order invoking its “inherent jurisdiction”.

The Court of Appeal overturned the lower court. While it agreed that there was merit to DNA testing in these circumstances and there was jurisdiction to make the order with respect to the plaintiff (as he was a party to the litigation), there was no jurisdiction for the order with respect to S, a non-party and non-resident. The Court emphasized the common law recognition of the sanctity of individual privacy and of bodily integrity. It agreed though that an order that otherwise offends those rights can be made if permitted by legislation (as with a party to the litigation). However, absent legislative authority, the Court’s “inherent jurisdiction” did not extend so far as to permit it to order the removal and testing of bodily fluids of a non-party. The order was set aside as against S. Given that the testing was of no use without DNA from both the plaintiff and S, the order against the plaintiff was stayed.

February 22, 2013

Driving “hotline” a concern for seniors

It appears that the Sudbury, Ontario police have set up a hotline to receive anonymous complaints about older people behind the wheel.

While physical and cognitive ability are important to safe driving and are to be taken seriously, this sounds a bit too “big brother” for my liking and smacks of ageism. Perhaps we could use driverless technology sooner rather than later.

February 21, 2013

The Effect of Pre-Nuptial Agreements on Estate Administration

On intestacy, can a spouse’s statutory entitlement to a deceased spouse’s estate be curtailed by the terms of a pre-nuptial agreement? Maybe – as you would expect, it depends on the terms of the agreement.

The Ontario Superior Court recently dealt with this issue in the case of Caron v. Rowe. The deceased (Paul) died intestate. Paul and his wife (Andrea) had entered into a pre-marriage agreement which included the following provisions:

The Home shall forever remain in Paul’s personal estate, including, but not limited to, all interest, rents, profits and proceeds of disposition which may accrue from the Home; and,

Paul shall have, at all times, the full right and authority, in all respects the same as he would have if not married, to use, enjoy, manage, gift, sell, assign and otherwise convey the Home without interference, approval or other consent from Andrea and the Home shall remain forever free of claim by Andrea with the exception that she shall have the right to live in the Home for a reasonable length of time following the legal separation of Paul and Andrea, if ever, such occupation not to exceed a term of six (6) months.

The issue for the Court was whether these provisions of the agreement disentitled Andrea to the home on Paul’s death, such that it would go to those next entitled on intestacy, being Paul’s parents. The Court held that, in these circumstances, it did not.

In reviewing the law, the Court found that the terms of a pre-nuptial agreement can disentitle a spouse to her or his right to estate property, but only where there are “direct and cogent words to that effect”. The reason for requiring such specificity arises from a finding that the entitlement of a spouse on death is substantial and is encoded in legislation, in Ontario the Succession Law Reform Act. Therefore, while parties can contract out of that right, they can only do so where the agreement clearly shows such an intention. In other words, the contract must deal with the parties’ rights in the event of death.

Here, the Court found that in reading the pre-nuptial agreement as a whole, it dealt with the respective rights of Andrea and Paul on separation and dissolution of the marriage but did not specifically address Andrea’s rights as a surviving spouse. She is therefore entitled to Paul’s entire estate.

February 15, 2013

Seniors piling on debt faster than any other age group

My thanks to Ira Smith for posting this article on Twitter

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February 7, 2013

Estates and the Indian Act (Canada)

For a lawyer dealing with the estate of a person registered under the Indian Act (Canada), the law regarding the jurisdiction and role of the courts concerning wills, intestacy and the administration of estates differs from Provincial legislation and the common-law, and sometimes the jurisdictional lines are not entirely clear.

Sections 42 through 46 of the Indian Act deal with descent of property and wills of persons registered under that Act. At first instance, jurisdiction and authority is given to the federal government, as opposed to the courts. Section 42 of the Act states that “all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister and shall be exercised subject to and in accordance with regulations of the Governor in Council”. While that jurisdiction can be conferred on a Court, such requires the consent of the Minister.

While the Act states specifically that it does not prevent a registered person from devising or bequeathing his or her property by will, s. 45 does state that no will executed by a registered person is of any legal force unless approved by the Minister or probated by a Court (where the Minister has consented to the Court’s jurisdiction). Section 46 of the Act also bestows on the Minister the jurisdiction to declare a will void for many of the same reasons as a Court at common law might do – duress or undue influence, lack of testamentary capacity, considerations of dependants, vagueness or uncertainty.

Section 43 of the Act also gives the Minister the authority to appoint and remove executors of wills and administrators of estates and to provide orders and directions to an executor regarding testamentary matters. This section was recently the subject of litigation because of s. 4(3) of the Act, which states that none of the sections described above apply to any registered person “who does not ordinarily reside on a reserve or on lands belonging to her Majesty in right of Canada or a province”. In Re Dickson Estate, the deceased died intestate. She was registered under the Act and had lived on reserve until 2009 when she was moved to a long-term care facility off reserve. She died intestate about 21 months later. Without first obtaining the consent of the Minister, the deceased’s sister applied to a Court for letters of administration, which were granted. The federal government sought to set aside the letters of administration claiming that the Court did not have jurisdiction to grant same without the consent of the Minister. The issue was whether the federal government did or did not have jurisdiction. That question relied on a determination of whether the deceased was “ordinarily resident” on a reserve.

The Court hearing the matter granted the federal government’s application finding that, despite the deceased having lived for almost two years off reserve, she nonetheless met the definition of ordinarily resident on reserve. In reviewing the law, the Court found that “ordinarily resident” means “residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence”. The determination must be made by reference to all facts of the case. Other Courts had found that “residence in a medical facility is not a customary mode of life but rather is a special residence”. Applying this rationale, the Court found that the deceased’s residence in a long-term care facility constituted special circumstances and did not affect her ordinary residence on reserve. Therefore, the Indian Act applied and the federal government retained jurisdiction over the appointment of an administrator.