Archive for May, 2013

May 29, 2013

The Talk You Didn’t Have With Your Parents

Interesting article from the New York Times. While we all know that discussing finances with aging parents is critical, this article sets out a game plan for approaching the subject.

May 27, 2013

Moves Like Jagger? – Here’s Hoping So!

Aging study to “explore previously unimagined areas of research on aging.”

May 16, 2013

The “Plot” Thickens – A Grave Situation?

Firstly – my apologies for the puns (both of them).

An issue that rarely receives judicial consideration was the subject of a recent Ontario Superior Court of Justice application – the rights of descendants to burial plots.

In Smith v. Cataraqui Cemetery Company, the Court was asked to determine whether the applicants, certain lineal descendants of Joseph Smith, were entitled to interment rights at Cataraqui Cemetery in Kingston Ontario. The name of the case caught my eye as I recognized the cemetery as the resting place of Sir John A. MacDonald.

Brothers Darius and Joseph Smith purchased sixty-four plots for interment of human remains in the Cataraqui Cemetery in 1869 for which they were given a “deed” to certain plots. The deed included the following grant:

to have and to hold the above granted Premises to the said Darius Smith and Joseph Smith and their Heirs and Assigns forever subject, however, to limitations and conditions with the privileges specified in the rules of the said cemetery…that they are actually and lawfully seized of the Land hereby granted.

On paper, Darius and Joseph Smith remain the interment right holders of the sixty-four plots and there was no evidence that either transferred their interment rights while they were alive or devised their rights by way of will. The cemetery took the position that unless the applicants could prove that they are interment right holders of any of the Smith plots, none of the remaining plots purchased by Darius and Joseph Smith can be used and, in effect, these plots should forever be sealed. The question then was whether the grant under the deed was sufficient to pass interment rights to descendants.

The Court reviewed the general rights of interment at common law. A person purchases not the land to which they wish to be interred, but the right to be interred in a specified plot. The purchaser is provided with an Interment Right’s Certificate as a record of how many rights were purchased and where, in the cemetery, the rights are located.

The Court considered the application of the Funeral, Burial and Cremation Services Act (the Act), which came into force July 1, 2012, and replaced the old Cemeteries Act. The Act specifies that that only an interment rights holder, or such other person to whom the interment rights have been assigned, has the right to inter human remains in the plot to which the interment rights relate. The cemetery therefore took the position that the applicants were required to show that they had such a right of interment as required by the Act.

On the facts, the Court found that the intention of the parties to the 1869 deed was to permit the transfer of interment rights to heirs of Darius or Joseph. It defined “heirs” in the deed broadly to include lineal descendants or family members of lineal descendants of either brother. The fact that the cemetery had permitted the burial of over twenty Smiths since 1869 without formal proof that they are interment right holders was a factor in the Court’s decision. Also important was the obvious fact that the brothers had purchased 64 plots. What did the cemetery think they intended to do with them?

The Court found further that the requirement under the Act that the right to interment be direct or by way of assignment does not have retroactive application so as to remove pre-existing substantive rights. Therefore, the deed was effective to transfer the Smiths’ interment rights to their lineal descendants and spouses without assignment.

Finally, the Court applied the law of estoppel to find that the cemetery’s silence and its acts in permitting other Smith burials without formal proof of interment rights prevents it from now insisting that the applicants prove such rights.

May 2, 2013

A Lawyer’s Duty to Beneficiaries

The obligation of a testator’s lawyer to potential beneficiaries in drafting a will or other estate planning documents was recently discussed in the Ontario Superior Court of Justice case of Vincent v. Blake Cassels & Graydon LLP. The case involved a motion for summary judgment to dismiss a negligence/breach of fiduciary duty action by a beneficiary against the testator’s lawyers in connection with the preparation of a will/estate freeze. The beneficiary, one of two siblings of the testator, claims that the lawyers failed to carry out the testator’s intention to treat both siblings equally. The case is interesting for the Court’s review of the status of the common law concerning when a testator’s lawyer may or may not have obligations to existing or potential beneficiaries.

As a general rule, and this will come as no surprise, lawyers do not owe a duty to beneficiaries. They do not act on behalf of beneficiaries and the lawyer’s obligation is to ensure that she or he carries out the instructions and intentions of her or his client, the testator. In most cases, the interests of a disappointed beneficiary and a testator will be in conflict, given that one decided not to include the other and the other is disappointed with the decision. The Court referred to caselaw setting out some very good reasons for not extending a duty to beneficiaries. Principal among these is the need for a solicitor to be free to make inquiries of a testator to determine testamentary intention and capacity without being hampered by some duty to those who may or may not benefit under the intended or a previous will.

However, the Court noted that in certain limited circumstances, a lawyer may owe a duty to beneficiaries as well as to the testator. That duty may arise where the interests of the testator and of the beneficiary are not in conflict but are aligned. Generally, this will arise where the issue concerns whether a potential beneficiary has been deprived because the lawyer failed to act in accordance with the testator’s “true” intentions. In such cases, the interests of the testator to benefit a beneficiary are the same as those of the beneficiary; i.e. to prepare the estate document as a prudent lawyer would in order to carry out the intentions of the testator. If the lawyer fails to do so such that an intended beneficiary does not receive an intended gift, she or he could face liability to the intended beneficiary. Such a scenario could arise, for example, where the drafting lawyer failed to properly carry out the intentions of the testator but a will is otherwise upheld because it meets the legal requirements for a valid will. Such cases are possible, if a rare, because while Courts will generally be loath to uphold a will that does not accurately express the testator’s intentions, where the consequences of not doing so are that a will fails, resulting in either an intestacy or a revival of a previous unsatisfactory will, the alternative may be to uphold the will and hold the drafting lawyer accountable.

In this case, the issue is whether the estate plan properly complied with what the parties agreed was the intention of the testator to treat her offspring equally and, if it did not, whether the drafting lawyers could be held liable to the affected beneficiary in negligence or as a result of breach of fiduciary duty. There were several factual issues that the Court determined would require a trial before that question could be answered.