Archive for ‘Wills’

February 1, 2016

David Bowie’s Will

According to reports, aside from what appear to be a couple of generous bequests (what is Possum Inc.?), David Bowie, or should I say David Robert Jones, has left most of his real estate and 50% of the residue of his estate to his wife Iman.  25% of the residue will go to each of his two children (one real estate property goes to David and Iman’s daughter).  I suggest litigation should be unlikely with this division but …

Here is The Guardian’s story.

Here is the New York Post’s story.

Bowie fans will know that he took the stage name “Bowie” because in the early years another Brit named David Jones was enjoying great (if fleeting) fame with The Monkees.

December 9, 2014

Mediation in Elder Law

I often focus in this blog on interesting cases dealing with points of law in estates and elder law.  However, I read an interesting article in this week’s Lawyers Weekly by Marilyn Piccini Roy dealing with the important role of mediation and the mediator in elder law.  Definitely worth a look.

Please note:  The original hyperlink used in this post was not functional.  I believe that the problem has been corrected.  My apologies.

October 2, 2014

Why Lawyers Draft Wills

A recent Ontario case is a good reminder of why preparing a will is best left to a competent lawyer.

In Budai v. Milton, the testator clearly wanted a no-nonsense approach to how his failing health and his estate were dealt with.  He had a will prepared by a retired financial planner, who also happened to be named as executrix of the estate.  The proposed executor was in all likelihood an excellent financial planner, but was found lacking in legal skills.

The will named one beneficiary, the applicant (defined in the will as a paid caregiver) and contained the following clauses:

6.1      Should my beneficiary, Kathy Budai challenge this Will or my choice of Executrix in any way then she will be removed from the Will and not inherit anything.

6.3      Should the estate have holdings due to my beneficiary not honouring my final wishes to pass away without any further efforts to prolong my life then the Executrix shall be in the control of distribution of the Estate.  She may give away the funds in any way she sees fit.  She may invest the balance of the Estate and use it for donations or any other purpose as long as the funds last.  There are no restrictions to what she may do with the balance of the Estate.

With respect to clause 6.1, the applicant took the position that it should be struck out as contrary to public policy on the basis of the in terrorem doctrine.  That doctrine can be invoked to strike a portion of a will where three criteria are satisfied, namely;

(a)   the legacy must be of personal property or blended personal and real property;

(b)   the condition must be either a restraint on marriage or one which forbids the donee to dispute the will; and

(c)   the “threat” must be “idle.”

The court found that these criteria had been satisfied. A bald prohibition to challenging the will “in any way” offended the doctrine.  Determining whether a threat is “idle” requires an examination of whether the threat is “imposed solely to prevent the donee from undertaking that which the condition forbids”.  Bare forfeiture of a gift is therefore considered an idle threat.

While the court found paragraph 6.3 to be valid, despite several claims of uncertainty, it did note that the ability of the executor to disburse funds in any way she sees fit to be suspicious. The proposed executor was also the drafter of the will and had the ability under that clause to disburse the estate to herself if the applicant was disinherited.  However, while the Court was willing to consider that suspicion may be a factor in determining whether a will as a whole is valid (an example would be suspicion contributing to a finding of undue influence), it was not satisfied that there was authority to hold that suspicious circumstances may be used to strike only a single provision in a will, leaving the remainder of the will valid.

May 23, 2014

Whither Walt Disney’s Fortune: I don’t think Mickey would approve

According to the Hollywood Reporter, the real-life Walt Disney World may not be the happiest place on earth.

January 28, 2014

A New World in Dealing with Experts?

Estate litigation may require evidence from various types of experts; medical professionals, business valuators, forensic accountants, real estate appraisers, etc.  Below I have reproduced an article by Stephen Schwartz and Gillian Silverhart of Chaitons LLP commenting on a recent Ontario case that could have a chilling effect on how lawyers interact with experts.

EXPERT REPORTS

Stephen Schwartz
Gillian Silverhart

On January 14, 2014, Madam Justice Wilson of the Superior Court of Justice released her decision in Moore v. Getahun (“Moore”) strongly criticizing the current practice of lawyers reviewing and commenting on draft expert reports prepared for use at trial.

MOORE v. GETAHUN

Moore was a personal injury action. During the examination of an expert retained by the defendants at trial, plaintiff’s counsel reviewed the expert’s file and found notes referring to a telephone conversation between the expert and defence counsel. During the call, counsel reviewed the expert’s report and suggested changes, which were made by the expert.

The plaintiff argued that it was inappropriate for defence counsel to make suggestions to the expert concerning his report. Defence counsel took the position that experts are entitled to prepare draft reports to be shared with counsel for comment.

Madam Justice Wilson agreed with counsel for the plaintiff, admonished counsel’s common practice concerning expert reports and found as follows:

“[50] For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.

[51] If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.

[52] I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality….

[520] The purpose of Rule 53.03 of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert’s primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel’s practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert’s final report as a result of counsel’s corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.” [Emphasis added in bold.]

THE EXPERT’S DUTY

An expert is required to be independent and impartial. Their duty lies to the Court, he or she must not advocate for the party on whose behalf they are engaged. An expert’s duty is codified in Rule 4.1.01 of the Rules of Civil Procedure (the “Rules”).

CURRENT PRACTICE

It is common practice for experts to provide counsel with draft copies of their reports for review and comment. Counsel regularly provide the expert with input where appropriate.

In our opinion, this practice was accepted by the Court because an expert’s impartiality remained protected in at least the following ways. Firstly, the entire file of an expert called to testify at trial, including their notes, correspondence with counsel and draft reports, may be the subject of a production order (see Conceicao Farms Inc. v.
Zeneca Corp
; reversed on other grounds). Secondly, an expert can and often is cross-examined by opposing counsel on their draft reports. Thirdly, pursuant to Rule 53.03(2.1) , experts must sign an acknowledgment of their duty to be objective and non-partisan as set out in Rule 4.1.01 of the Rules.

BEST PRACTICES FOLLOWING MOORE v. GETAHUN

The comments of Justice Wilson in Moore, if followed, represent a marked departure from the current practice concerning the preparation of expert reports in Ontario. According to Justice Wilson, it is no longer appropriate for counsel to review and provide comment on draft expert reports. The current practice may result in the Court refusing to accept the report or limiting the evidentiary value or the report.
As a decision of the Superior Court of Justice, it remains open for other trial judges of co-ordinate jurisdiction to disagree with the analysis of Wilson J. and confirm the acceptability of the current practice.

In our view, for the reasons set forth above, consultation between counsel and an expert concerning the expert’s draft report does not compromise the expert’s impartiality or create a perception of bias. Moreover, such consultation is not inconsistent with the expert’s duty to the Court. Interestingly, the Court’s decision in Moore does not appear to expressly prohibit discussions between counsel and an expert prior to the report being drafted.
However, until the comments of Justice Wilson are overruled or rejected, counsel and experts should be mindful of the Court’s direction. They may consider proceeding by expanding discussions and consultation prior to the report being written. Further, any revisions requested to a draft report by counsel might be provided by correspondence and disclosed to opposing counsel. At a minimum, there should be a discussion between the expert and counsel on the level and manner of counsel’s involvement in the preparation of an expert report.

* As at January 23, 2014, counsel for the defendants was awaiting instructions as to whether appeal the decision. However, even if the decision is overturned, the Court of    Appeal may not comment on Justice Wilson’s findings on this issue.

January 13, 2014

Excellent Judicial Analysis of Tests on Passing of Accounts in Ontario

A recent Ontario Superior Court of Justice decision provides a very good analysis of the tests to be applied in passing the accounts of both an attorney under power of attorney and an estate trustee – Re Aber Estate

January 4, 2014

Beware the “Pour-over Clause”

The formal requirements for a valid will can pose problems when testators seek to incorporate by reference other documents into a will. This is especially problematic where the document intended to be incorporated is changed after the date of the will. This was the issue in a recent British Columbia case.

In Kellogg Estate v. Kellogg, the Court was dealing with what is referred to as a “pour-over” clause. The purpose of the clause was to make a gift under a will to an existing trust. A husband and wife established a family trust for estate planning purposes with their three children as the primary beneficiaries. The trust included a provision that upon the death of the survivor of the husband and wife, the primary beneficiaries were to receive equal shares in the balance; one half distributed on the surviving parent’s death and one half five years later.

The husband and wife both executed wills dated the same date as the trust. Their wills included a bequest of the residue of their respective estates to the trust, to be administered in accordance with the trust, “including any amendments thereto made before my death”. The Wills also included a clause stating that if a bequest to the trust was invalid, the residue of the respective estates were to be managed and distributed under the terms of the trust as it existed immediately prior to its determination of invalidity and incorporated the trust by reference into the will.

Subsequent to the execution of the wills, the parents amended the trust, the primary change being the removal of one child as a beneficiary.

The issue for the Court was whether, firstly, incorporation of the trust into the wills of the parents generally was valid and, secondly, whether the subsequent amendment to the trust was likewise incorporated into the wills.

The Court conducted a review of the relevant law of incorporation into a will. It concluded that incorporation of a document into a will is valid if (1) the document is in existence at the time the will is made and (2) the document is beyond doubt the document referred to. The Court found that the original trust met this test and could properly be incorporated into the parents’ wills.

As for the amendment though, because it post-dated the wills, it did not meet the test for incorporation. As a result, it could only have testamentary effect if it met the requirements of the B.C. Wills Act, in particular the requirement for two witnesses (s. 4 of the Succession Law Reform Act in Ontario). The trust amendment was not witnessed.

But what of that part of the incorporation provision in the wills stating, “including any amendments thereto made before my death”. This provision was not effective to include the amendment as a testator may not reserve the ability to make gifts upon death after the date of the will without complying with the requirements of the Wills Act.

The effect of the decision is that the residue of the estates was a valid bequest to the trust as it existed before the amendment; i.e. with all three children as beneficiaries.

This decision underlies the need to always keep in mind the formality requirements for documents intended to have testamentary effect.

December 5, 2013

Do Will Beneficiaries Claiming to Have been Wronged Have an Interest in Land?

The transfer of property from a parent to an adult child gives rise to a rebuttable presumption that the child holds the property in trust for the parent. If the parent dies and the child sells the property, using the proceeds to purchase another property, can sibling beneficiaries under the parent’s will obtain and order for the issuance a certificate of pending litigation (CPL) against the new property? An Ontario court says yes.

In Jordan v. Jordan, the Superior Court of Justice was asked to grant leave to certain siblings to issue a CPL over property owned by another sibling that he purchased with proceeds of two properties transferred to him by the mother before her death. One property was purchased for nominal consideration and the other allegedly far below market value. The siblings’ claim appears to be that the child holds the property as trustee for the mother’s estate as traceable proceeds of the maligned transfers. The issue on the CPL motion was whether the moving siblings had claimed a sufficient interest in the property to permit a CPL to issue. The siblings argued that they did not need to show a claim to an interest themselves in the property. Because there is a rebuttable presumption of a trust for the benefit of the parent and an allegation of dependence by the parent on the child, they argued such should be sufficient to show that title to the original property was at issue and therefore that a CPL should issue.

While not giving significant analysis to the issue, the court accepted this position while relying on other factors as well, including a finding that no third party would be prejudiced by the issuance of a CPL. However the concept is interesting as the court seems to have accepted the principle that a party does not need to claim a direct interest in property (or perhaps more properly the proceeds that purchased the property) but need only show that beneficial title is in issue by way of the presumption of trust. I would venture that the siblings, as beneficiaries of the parent’s will, did have a claim to an interest in the property/proceeds but that does not seem to have been the deciding factor for the judge.

July 30, 2013

A forged will and a fort?

This is an estate dispute for the ages.

http://www.thestar.com/news/world/2013/07/29/princesses_in_north_india_become_owners_of_palaces_vast_fortune_after_court_verdict.html

July 24, 2013

A Public Debate Over the Wisdom of Gandolfini’s Will

I am always amazed at the attention that a celebrity’s will can garner. On the bright side, it draws attention to the need for good estate planning – whether you are Tony Soprano or John Q. Public.

http://business.financialpost.com/2013/07/22/a-public-debate-over-the-wisdom-of-gandolfinis-will/