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SUCCESSION: SPRING 2018INTRODUCTION...................................................................................................................................................... 4

A. THE LAW OF SUCCESSION.......................................................................................................................... 4B. SOURCES OF LAW........................................................................................................................................ 4C. SPOUSES AND CHILDREN........................................................................................................................... 4

DEATH AND THE BODY......................................................................................................................................... 6A. SURVIVORSHIP AND POSTHUMOUS BIRTHS.............................................................................................6B. THE BODY...................................................................................................................................................... 7

INTESTATE SUCCESSION..................................................................................................................................... 8A. THE GENERAL LAW....................................................................................................................................... 8B. SPECIFIC ISSUES.......................................................................................................................................... 9C. THE SPOUSAL HOME.................................................................................................................................. 11

NATURE OF A WILL............................................................................................................................................. 12A. TESTAMENTARY OR INTER VIVOS............................................................................................................12B. CONDITIONAL WILLS................................................................................................................................... 12C. DISCRETIONARY TRUSTS.......................................................................................................................... 12D. ‘DELEGATION’ OF WILL-MAKING POWER.................................................................................................12

EXECUTION OF A WILL....................................................................................................................................... 13PART 1: MAKING AND ALTERATION OF WILLS.............................................................................................13

A. INTRODUCTION....................................................................................................................................... 13B. THE LEGISLATION................................................................................................................................... 13C. THE WILL-MAKER’S SIGNATURE OR ACKNOWLEDGEMENT.............................................................13D. WITNESS.................................................................................................................................................. 14E. PRESUMPTION OF DUE EXECUTION....................................................................................................15F. INCORPORATION BY REFERENCE, SECRET TRUSTS AND “POUR-OVER” CLAUSES....................15G. CODICILS AND ALTERATIONS...............................................................................................................16

PART 2: WITNESSES AS BENEFICIARIES......................................................................................................16H. THE LEGISLATION.................................................................................................................................. 16I. THE CASE-LAW......................................................................................................................................... 17

WILLS – CAPACITY AND RELATED TOPICS.....................................................................................................18A. AGE............................................................................................................................................................... 18B. OVERVIEW-CAPACITY, KNOWLEDGE AND APPROVAL, UNDUE INFLUENCE, FRAUD........................18C. MENTAL CPACITY........................................................................................................................................ 19D. KNOWLEDGE AND APPROVAL...................................................................................................................20E. UNDUE INFLUENCE..................................................................................................................................... 20

SOLICITORS’ RESPONSIBILITIES AND LIABILITIES........................................................................................21INCAPACITY PLANNING...................................................................................................................................... 22

PART 1: INTRODUCTION................................................................................................................................. 22PART 2: ENDURING POWERS OF ATTORNEY – ALL SECTIONS = POWER OF ATTORNEY ACT UNLESS STATED OTHERWISE.......................................................................................................................................................... 22PART 3: REPRESENTATION AGREEMENTS – ALL SECTIONS = REPRESENTATION AGREEMENT ACT UNLESS STATED OTHERWISE.............................................................................................................................................. 25PART 4: ADVANCE DIRECTIVES – ALL SECTIONS = HEALTH CARE (CONSENT) AND CARE FACILITY (ADMISSION) ACT UNLESS STATED OTHERWISE.......................................................................................................................... 27

S.M.CHEN: Succession_Spring ’18 -

PART 5: PARTIENT’S PROPERTY ACT – ALL SECTIONS = PATIENT’S PROPERTY ACT UNLESS STATED OTHERWISE.......................................................................................................................................................... 28

ABORIGINAL ESTATES....................................................................................................................................... 29REPUBLICATION, LAPSE AND ADEMPTION.....................................................................................................30

PART 1: REPUBLICATION................................................................................................................................ 30PART 2: LAPSE................................................................................................................................................. 30

A. THE GENERAL LAW................................................................................................................................ 30B. ANTI-LAPSE PROVISIONS IN A WILL.....................................................................................................31

PART 3: ADEMPTION....................................................................................................................................... 31

CHAPTER 8: REVOCATION AND REVIVAL........................................................................................................32PART 1: REVOCATION..................................................................................................................................... 32

A. THE LEGISALTION................................................................................................................................... 32B. SUBSEQUENT INSTRUMENT................................................................................................................. 33C. ACTS OF THE WILL-MAKER AFFECTING THE WILL............................................................................33D. CEASING TO BE A SPOUSE................................................................................................................... 34E. MARRIAGE............................................................................................................................................... 34F. DEPENDENT RELATIVE REVOCATION.................................................................................................34G. JOINT AND MUTURAL WILLS................................................................................................................. 35

PART 2: REVIVAL.............................................................................................................................................. 35

DISCLAIMER AND ABATEMENT FOR DEBTS...................................................................................................36A. DISCLAIMER................................................................................................................................................. 36B. ABATEMENT FOR DEBTS........................................................................................................................... 36

RECTIFICATION AND CURING DEFICIENCIES..................................................................................................37A. CURING DEFICIENCIES UNDER SECTION 58...........................................................................................37B. RECTIFICATION........................................................................................................................................... 38

CONSTRUCTION................................................................................................................................................... 38A. COMMON LAW & STATUTORY LEGISLATION...........................................................................................38B. GENERAL PRINCIPLES............................................................................................................................... 39C. “MISTAKEN” INCLUSION AND OMISSION..................................................................................................39D. PROPERTY................................................................................................................................................... 40E. PEOPLE........................................................................................................................................................ 40F. CLASS GIFT.................................................................................................................................................. 41

TRANSFERS OUTSIDE OF A WILL..................................................................................................................... 43A. GIFT............................................................................................................................................................... 43B. JOINT TENANCIES....................................................................................................................................... 43C. TRUSTS........................................................................................................................................................ 44D. INSURANCE DESIGNATION........................................................................................................................45E. BENEFIT PLAN DESIGANTION.................................................................................................................... 45

CLAIMS AGAINST THE ESTATE......................................................................................................................... 48PART 1: WILLS VARIATION.............................................................................................................................. 48

A. THE LEGISLATION................................................................................................................................... 48B. WHOM MAY APPLY................................................................................................................................. 48C. THE COURT’S DISCRETION................................................................................................................... 48D. PROPERTY AVALIABLE TO SATISFY A CLAIM – FRADULENT CONVEYANCE..................................51

PART 2: PUBLIC POLICY.................................................................................................................................. 51

ESTATE ADMINISTRATION: THE PERSONAL REPRESENTATIVE..................................................................52A. PERSONAL REPRESENTATIVE’S DUTIES.................................................................................................52


B. PRELIMINARY MATTERS............................................................................................................................ 52C. OBTAINING THE GRANT............................................................................................................................. 53D. ADMINISTERING THE ESTATE...................................................................................................................54E. BENEFICIARIES............................................................................................................................................ 55F. WRAPPING IT UP......................................................................................................................................... 55G. TAX IMPACT ON ESTATES......................................................................................................................... 55

REAL LIFE ESTATE ISSUES................................................................................................................................ 57A. PLANNING FOR PERSONS WITH DISABILITIES........................................................................................57B. CREDITOR PROTECTION............................................................................................................................ 58C. CONFLICT OF LAW...................................................................................................................................... 58D. FAMILY LAW................................................................................................................................................. 59


INTRODUCTION

A. THE LAW OF SUCCESSION

Purpose of Estate Planning: To ensure property gets to the person who are the desired beneficiaries // To make sure property does not get to persons who are not desired beneficiaries // To protect the property from creditors, taxation authorities and any other claimants

Policy concerns: Need to protect vulnerable people versus the need to ensure people’s autonomy is respected

Testate IntestateA will governs who will receive the assets, in what amounts and when as well as the identity of the personal representatives

WESA sets out legislative scheme for who receives what assets in what amounts and when. Legislature also sets out order of priority for PR

Executor appointed by will takes ownership at date of death; Ownership does not depend on grant of probate

Administrator appointed by court takes ownership on date of court appointment

Grant of probate Grant of administration

B. SOURCES OF LAW

Combination of common law, equity and statute (WESA: Applicable to wills after March 31, 2014)Part 1: Definitions & Interpretations // Part 2: Fundamental Rules // Part 3: Intestate // Part 4: Wills // Part 5: Benefit Plans // Part 6: Administration of Estate // Part 7: Transitional Provisions, Repeals and Consequential and Related Amendments

C. SPOUSES AND CHILDREN

1. Spouses

WESA2(1) Who are

spouses2 persons are spouses if they were both alive immediately before a relevant time and

(a) they were married to each other, or (b) they had lived with each other in a marriage-like relationship for at least 2

years2(2) Cease

being spouses

2 persons cease being spouses if (a) in the case of marriage, an event arises that causes an interest in family

assets, as defined in Part 5 (property division) in Family Law Act, to arise (b) in the case of a marriage-like relationship, one or both terminate the

relationship2(2.1) Not

separatedSpouses are not considered separate, if within 1 year after separation,

(a) they begin to live together for the primary purpose of reconciling (b) if they continue to live together for one or more periods, totalling at least 90

days56 Default (1) Allows for contracting out of the default

(2) Default: If spouses separate, any gift under a will is revoked and gift is distributed as if spouse died before will-maker(3) This section is not affected by a subsequent reconciliation (gift is still revoked)

FAMILY LAW ACT81 Spouses are entitled to ½ of the property and ½ of the debt regardless of contribution


2. Child

Presumption #1: No assisted reproductiono Child’s parent = birth mother and biological fathero (S26) Presumption of Paternity is the legal presumption re: identity of dad (If more than 1

person fits the bill, no presumption) Married to mother at birth, Married to mother and marriage ended by death or divorce within 300 days before child’s

birth, Married after birth but acknowledges paternity, Marriage like relationship within 300 days before birth

Presumption #2: With assisted reproductiono Donor of human reproductive material does not make someone a parento Assisted reproduction

Birth mom = parent Person married to, or living in a marriage like relationship with birth mom when child’s

conceived = parent Unless proof that the person did not consent or withdrew consent to be a parent

o Surrogacy with written agreement Intended parents = parent instead of birth mothero All cases with written agreement before conception through assisted reproduction Intended

parents = parent instead of birth mother

WESA24(1) Donors does

not = ParentDonors are not automatically the parent

26 Parentage if no assisted reproduction

(1) Children parents are the birth mother and the child’s biological father(2) (Rebuttable Presumption) Male person is presumed to be the biological dad if

(a) he was married to the birth mom on the date of birth, (b) he was married to birth mom within 300 days of child’s birth and

marriage was ended by death, divorce, void/voidable marriage, (c) he married birth mom after birth but acknowledges he is dad, (d) he was living with birth mom in marriage-life relationship within 300 day

of birth or (e) he, along with birth mom, has acknowledge he’s dad by signing a

statement under Vital Statistics Act (f) he acknowledges he’s dad by signing an agreement under Child

Paternity and Support Act27 Parentage if

assisted reproduction

Child’s birth mom is the child’s parent Person married to birth mom or in a marriage-like relationship with birth

mom is parent until there is proof that before the child was conceived, the person (a) did not consent to be the parent or (b) withdrew the consent to be the parent

28 Parentage if assisted reproduction after death (Requirements)

(a) child is conceived through assisted reproduction (b) person who provided reproductive material did so for that persons’ own

reproductive use and died before conception and (c) there is proof that the person

o (i) have written consent to use the material by the parson married to or in a marriage-like relationship

o (ii) gave written consent to be the parent and o (iii) did not withdraw the consent before death

29 Parentage if surrogacy arrangement3 Adopted child If adopted they’re a child for the purpose of WESA. But, adopted child is no

longer entitled to the estate of pre-adoption parents Stepchildren No rights as children under intestacy + No succession rights + No right to vary a


will

KLW v Genesis Fertility Centre[ Material = Property Wife ]

Husband passed away before providing written consent for the wife to use the reproductive materials to have a child. Fertility clinic will not release the materials to the wife after the husband’s death

Court found that the materials qualify as property and thus the wife inherited it after husband’s death

DEATH AND THE BODY

When to use? If there is a missing person it may be necessary to seek an order declaring the person to be deceased and stating date that person is presumed to be dead under Presumption of Death Act (‘PoDA’) s3

PRESUMPTION OF DEATH ACTIntroduction Presumption of Death Act gives the court the power to declare someone deceased Who may apply? “Interested Person”

Any person who is or may be affected by the order made Next of kin Person who holds property of the person presumed dead

What must be proven (S3(1))

Absent and not heard of or from by applicant or to the knowledge of applicant any other person since a day named

No reason to believe is living Reasonable grounds for supposing that the person is dead

Burden of Proof Balance of probabilities

PRESUMPTION OF DEATH ACT3(1)

Requirements for order: (a) person is absent + not heard of from by the applicant or to the knowledge of the applicant by

any person since the day named (b) applicant has no reason to believe the person is living, and (c) reasonable grounds exist for supporting that the person is dead

** Must state date of presumed death, and can be for all purposes or limited3(4)

Order may be varied, amended, confirmed or revoked on application of an interested person

4 If the personal representative subsequently has information that there is reasonable grounds the person is not dead, PR cannot deal with estate until further order is made under S3

5 The status of the property if the deceased is later found alive S5(1): If deceased later found alive then to the extent property has been distributed in reliance

on order it is deemed a final distribution shit out of luck S5(2): Court has discretion to do what it wants

6 If a person is actually dead, distribution in reliance on order is final as against a person otherwise entitled

Re Cyr[ Burden of Proof]

Court refused to make an order on the facts as the person might have been murdered or just ran away

For order of presumption of death, death must be shown on a BoP

A. SURVIVORSHIP AND POSTHUMOUS BIRTHS

When to use? common accidents where the sequence of death cannot be confirmed and one person’s estate plan provides for another ( WESA is drafted to avoid gifts to deceased persons)

WESA5 Fundamental

Rule (Simultaneous)

If died at same time uncertain who survived who, right to property determined as if each had survived the other (can contract out of)

Where property is held as joint tenants, then each is deemed to hold as


tenants in common 6 General

Presumption (Simultaneous)

Applicable where an instrument provides for the disposition of property in the event a person dies before, at the same time or where it is unclear who died first and it is unclear who survived whom

8 Posthumous Births

Descendants conceived before the intestate’s death but born after death and living for at least 5 days inherit as if they have been born during the deceased’s lifetime and survives the estate

8.1 Conception after Death

(1) Inherit as if born during lifetime if:(a) person who is married or in a marriage-like relationship gives written notice

to PR and heirs that person may conceive within 180 days from issue of representation grant

(b) defendant is born within 2 years after death and lives for 5 days(c) deceased is parent (consent to being parent + surrogate consent to

surrendering child to personal rep)(2) Right to inherit starts from date of birth (only retroactively applicable to parent’s estate)(3) Court may extend time

9 Survival of Beneficiaries

(1) If B’s right is conditional on B surviving another person and B dies at the same time, then B is deemed to predecease the other person(2) If property is left to 2 B and both died at the same time, then property is divided and distributed as if each of the Bs had survive (taken in equal shares)

10 Five-day Survival Rule

(1) If you don’t survive the deceased for 5 days, then you’re dead to the determination of who is entitled to the property

Note, Can’t draft out of this rule, but can extend the time must survive(2) Where property is held in joint tenancy, and the joint tenants do not survive each other by at least 5 days JT is converted into TiC

INSURANCE ACT63 Beneficiary

Predeceasing Life Insured

(1) Where a beneficiary has predeceased Insurance payable to surviving beneficiary, if more than one in equal shares If there’s no surviving beneficiary, then to the insured’s personal rep.

(2) If 2 or more B are designated and nothing about division assume equal division83 Simultaneous

DeathWhere insured and beneficiary die at the same time or in circumstances where timing is uncertain, then insurance money paid as if beneficiary has predeceased

Re Law

[Simultaneous Death]

Deceased had 3 insurance policies (Wife named as B). Husband, wife & father all drowned simultaneously. Wife has a daughter from an ex. Husband has a surviving mom.

WESA: Since wife did not survive husband for 5 days, then the husband’s life insurances goes to whoever is the next of kin as if he did not have a surviving spouse

B. THE BODY

CRIMINAL CODE182 What must not happen Messing with dead bodies can get you up to 5 years

FUNERAL ACT5(4) Who gets

it? Sets out hierarchy + Factors for the court to consider re: a claim for the sole right to control disposition

6 Stating who gets it

Written preference is binding if: Stated in will or preneed cemetery/funeral service contract Consistent with Human Tissue Gift Act Compliance would not be unreasonable, impractical, or cause hardship

20 Court intervention

(1) Court can intervene to allow or restrain the exhumation or disinterment(2) But when considering a S20(1) application, must consider factors: Feelings of those related/associated (spouse extra important); Religious faith; Any terms re: this in the contract for the interment; Any reasonable direction given by the deceased; Family


hostility or a capricious change of mindNote

Cost Executor may be liable for over-spending if the estate does not have the money to pay for a lavish funeral

INTESTATE SUCCESSION

A. THE GENERAL LAW

Circumstances: Arises when there is no valid will or when not all assets are accounted for

WESA19

Spouse, kids Spouse, no descendants = all to spouse

20

Spouse, kids To the spouse: Household furnishings Preferential share of intestate estate depending on whether kids are shared

between spouses (if shared, $300k, if not $150k) To the kids:

If kids are kids of both spouse, preferential share = $300k If kids are not kids of both, preferential share = $150k

If net is Less than preferential share, all to spouse Same or greater than preferential share

o Spouse has charge on intestate estate for amount of preferential shareo Residue ½ to kids, ½ to spouse

21

2 or + spouses

Share the spousal share in the portion they agree to or determined by the court

22

Spouse, kids 1. To the kids2. If no kids, to the surviving parents in equal shares3. If no surviving parents, to surviving kids of parents in equal shares4. If no surviving kids, parents or kids of parents, but survived by grandparents

a. Equal part to grandparentsEtc.

If no person entitled, pass to government (S22(2)(f)) Person above 5th degree is deemed to predecease But provision does not limit a person of greater degree to inherit (S22(4))

23

Distribution to descendants

Shares must be divided into shares equivalent to number of surviving kids and kids who left kids in the generation nearest to the intestate that contains one or more surviving members

25

Partial Intestacy

Applies to part of an estate that is neither the subject of a gift nor otherwise disposed of by a will

Partial Intestacy (WESA, S25):Example: $500k estate and will gives two $50k gifts but nothing further $400k pass on intestacy If spouse and children are all related, then first $300k to spouse and remainder split 50/50 between spouse and rest of children

Do not take into consideration what the spouse received prior to the intestacy


B. SPECIFIC ISSUES

1. SPOUSES

WESA2(1)

“spouse” (a) Married to each other(b) Lived in a marriage-like relationship for at least 2 years

2(2)

Ceases being Spouses

(a) Property division under family Law Act(b) one or both person terminate the marriage-like relationship

2.1: Spouses did not separate if within one year after separationo (a) they begin to live together again to reconcile, ando (b) they continue to live together for a period totally 90 years or more

2(3): Relevant time is time of death of one of the person

Souraya v Kinch

[ Not Spouses ]

Man had his own residence, maintained a separate family and personal life from woman. Lack of significant financial inter-relationship or shared financial commitments. Lack of private/public commitment

Objective Factors (Molodowich) Not checklist, is a list of factors informing inquiry

(1) Shelter(2) Sexual and personal behavior?(3) Domestic Services(4) Social(5) Societal(6) Support (Economic)(7) Children

Subjective Component: Must examine the subjective intentions of the couple to live together as spouses; What was the subjective attitude of the couple vis a vie their long term commitment to one another?

Warwick Caveat: IMPORTANT: The extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case

Is Cohabitation Necessary for Spousal Status? Not necessarily

Re Richardson Estate

[Spouses]

15 years relationship + separate residence + spent a lot of time at each other’s pad + loving relationship + man referred to woman as gf and did not mention woman in retirement plans + filed separate taxes + presented themselves as loving and committed couple + strong relationship with families + engaged in a wedding like celebration on trip

Held to be in a spousal relationship: They had work and family obligations that required them to live apart and that was not determinative of it not being a spousal relationship

Connor Estate

[Spouses]

21 years relationship (started before man was divorced) + lived apart b/c of woman’s hoarding problem + vacationed together every year & refer to each other has husband & wife while traveling + woman gave man modest financial support but finances mostly separate

Held to be spouses because they had a loving relationship for over 20 years (satisfy subjective intention); Looked to relationship before separation of man & ex-wife

When does a Relationship Terminate? When there is a settled intention to separate

Gosbjorn v Hadley[Did not terminate]

12 years CL relationship. Woman moved out of basement suite with daughter month that man committed suicide (taking her chattels with her).

Held that evidence did not show a settled intention to separate (Man was suffering from chronic drug abuse & financial abuse; evidence of suicide within days of separation suggests an unsettled state of mind)


2. CHILDREN

Definitions: Example: 3 children each with 2 children of their own

Per Stirpes: Each kid gets 1/3, each grandkid gets 1/6

Per Capita: Each descendant gets 1/6

ADOPTION ACT37(1)

Effect of Adoption Order

(a) Child becomes child of adoptive parent(b) Adoptive parent becomes parent of child(c) (Prior) parents cease to have any parental rights or obligation, unless one is a parent who remains a parent jointly with adoptive parent

37(2) If application was made jointly with another parent, the adult joins the parent as parent of the child and any other parent ceases to have any parental rights/obligation

37(6) Property Interest

Adopted child don’t lose the gifts that vest before the adoption order upon adoption

37(7) Aboriginal Adoption does not affect any aboriginal rights the child has

WESA3(2) Effect of

AdoptionIf a child is adopted, the child is not entitled to the estate of his pre-adoption parent except through will (vice versa)

3(3) Spousal Adoption

Adoption by spouse of pre-adoption parent does not terminate the relationship of parent and child between the child and pre-adoption parent

Note Stepchildren Step-children aren’t children for the purpose of intestacy (McCre v Bennet)

3. KINSHIP

Parentellic Distribution (WESA, S23) (look to 4 degrees of relationship; if no one within escheat to Crown; but may be able to seek provision on moral grounds)

1. Parents first If you have no one on the family tree, look to the parents first 2. If no parents descendants of parents (i.e. siblings of deceased or sibling’s descendants)

o Half siblings count as relativeo Adopted siblings count as relatives

3. If none in category above grandparents and their descendantso One part to each parent’s set of parents

4. If still no one great-grandparents on the same basis

Re Kishen Singh

[Half-sibling] Court held that the half-sister should be treated as a sibling regardless of the ‘half-blood’ status

C. THE SPOUSAL HOME

Testator

DaughterEvaggelia (Dead)

DaughterMaria (alive)

GranddaughterMaria

GrandsonJohn

GranddaughterLoukia

GranddaughterMarina

if per stirpes applies here, then Evaggelia’s half goes equally to 4 grandchildren

if per stirpes applies here, then Evaggelia’s half all goes to Granddaughter Maria


Division 2 of WESA provides for surviving spouse acquiring the spousal home on an intestacy:

WESA1 “Spousal

Home”Where the spouse is ordinarily resident (primary home)

26(2) Right to Purchase

Spouses have the right to purchase the estate with shares of the estate Can pay with share of the estate if the value of the shares exceed the value of

the home Court may order vesting home in spouse

27/29 Notification Notice must be given to other heirs within 180 days of grant of administration (should inc. what they think is FMV of the house)

If there cannot be an agreement of the value of the spousal home then they can apply to the court

31 Home > Interest

If value of home > value of spouse’s interest, spouse may elect to pay the estate the difference in the values and take the spousal home

33(1) Orders the court can make re: Retention of Home

(requirements + possibilities)

Court may make an order if: (all must be satisfied) Ordinarily resident in home with deceased at death Assets insufficient to satisfy all interests without sale Spouse purchasing would impose significant financial hardship Prejudice to spouse greater than to descendants in delaying receipt of

inheritance Spouse lived in home long enough to establish a connection to home or

connection to community/membersOrders the court can make:

Vest in spouse Set the amount to be paid to the descendants Convert remainder into registerable charge Determine interest rate Determine value of charge

34 Registrable Charge

Charge becomes payable 12 months after death of spouse or when ceases to reside/sale

If certain expenses unpaid or jeopardizes value the you can get the money out early via the registered charge

35 Extra payment circumstances

List of circumstances that may result in the charge being payable at a different time, in particular, the important one is S35(2)(c) an action or failure to take action that jeopardize the value of the home to the extent that it no longer provides sufficient security for the charge amount

If an order is made by the court under this, the spouse will have 180 days to sell and pay

If the sale does not yield enough money to pay the charge, the court may order the release of the charge but cannot order the recovery of the short fall from the estate of the deceased or the surviving spouse.

NATURE OF A WILL


A. TESTAMENTARY OR INTER VIVOS

Definitions Testamentary: Disposition that takes effect only on death Inter Vivos: Disposition that takes effect during one’s lifetime

Purpose for Testamentary Formalities (John H. Langbein “Substantial Compliance with the Wills Act”)1. Evidentiary function : the court ultimately needs to know that the will is genuine and the testator intended

to create it. Reality is most time this is an inquiry that happens after the will-maker dies. 2. Channeling function : makes the document easier to interpret3. Cautionary function : by making someone jump through hoops demonstrate seriousness of document 4. Protective function : formality protects people from fraud and undue influence

Bird v. Australia [ Test for Testamentary Document ]

A document was executed under seals by the deceased that says a debt ought to be paid from one’s estate on death

Test: A document made to depend upon death for its vigour and effect and as necessary to consummate it is a testamentary document

Hutton v Lapka

[ Life and Vigour ]

Testator forgave one of her son’s debt under a note signed by testator.

The contract had life and vigour from the date of creation because it gave deceased the benefit of knowing the debt has been acknowledged (look at whole doc, not just disposition)

B. CONDITIONAL WILLS

Concept: If effectiveness of a will is dependent on a condition that is never fulfilled will never takes effect

Re Heubner

[ Unconditional ]

Testator left a will that stated “if he dies on the trip”, Pat will be his heir. Testator died 2.5 years after the trip. Pat was named as heir. Was it conditional?

Language used indicated the reason for making the will, not a condition for the will

Re Green Estate

[ “In the event” ]

Holograph will stated: “In Event Something Should Happen to Both of Us” and proceeded to allocate assets to children. Signed by both husband and wife

Testator’s language was unambiguous and a condition

“In the event” clearly indicate contingency

C. DISCRETIONARY TRUSTS

Concept: Powers of appointment is a power of appointment that limits a group of people to who a person who holds the property can appoint

D. ‘DELEGATION’ OF WILL-MAKING POWER

Concept: A person may give another person a power to appoint the property in accordance with the terms of a power

A power give to a trustee may be a trust power (must exercise), or A mere power (trustee must consider but can choose not to execute) Could be a bare power which the donee need not exercise or even consider

Categorization: Powers are divided into 3 categories: General: Donee must appoint in the donee’s own favour

o Power to appoint anyone in the world or in favour of a small group Special: Power to appoint from a small group Hybrid (intermediate): Power to appoint in favour of anyone in the world, with few exception

Tassone v Case is regarding the validity of Entirely permissible for the will to contain a general power


Pearson[ General Power Appointment ]

a general power of appointment in the will

of appointment that would authorize the executor to distribute the entire estate (inc. to himself) if he chooses

EXECUTION OF A WILL

PART 1: MAKING AND ALTERATION OF WILLS

A. INTRODUCTION

This section will be talking about the formalities and exceptions when making a will

B. THE LEGISLATION

WESA37(1) Valid Will

Req.To be valid, will must be

(a) in writing (b) signed at its end by WM (or acknowledged) in the presence of 2 or + witness

present at the same time (c) signed by 2 or more witness in the presence of the WM

37(2) Curative Provision

A will that does not comply with the formalities will be invalid unless (a) S58 Court orders it ok (b) Will recognized as ok under S80 (c) Valid under another provision of the Act

o i.e. Military forces – S3838 Military Will58 Curative

Provision(2) The court can determine that a document is a valid will if the will represents

(a) the testamentary intentions of the deceased (b) & (c) the intention of the deceased to revoke, alter, or revive a will or

testamentary disposition contained in a document other than a will(3) Court may hold wills that may not comply with this Act as valid will

58 Illegible Words

If the alteration to a will makes a word illegible and the court is satisfied that the alteration does not comply with the Act, then the court may reinstate the original words

C. THE WILL-MAKER’S SIGNATURE OR ACKNOWLEDGEMENT

WESA1 “WM’s

signature”Will-maker’s signatures is a signature by the will maker or one by another person in the WM’s presence and at the WM’s direction (this signature may be the WM’s signature or the person signing’s signature)

39 Signature Placement

Where it is apparent on the face of the will that the WM intended to give effect to the will deemed to have been signed at its end

Re Wagner

[ Signature on envelope ]

WM had will drafted and sealed into an envelope; wrote ‘Last Will & Testament of” and signed the envelope. Signature at the top of the will + signature on the envelope.

Held that signature was ok:1. Signature was the last act in making the will2. If signature was for identification only, then just

the witness signature is sufficient3. Testator is survived by widow and 9 kids,

estate was small and left it entirely to the widow

4. Circumstances surrounding the preparation/execution clearly express the intention of the deceased and precludes fraud


Taylor v Holt [ Computer Signature ] Signature affixed in presence and sight of witness

Held that it was valid

Re Bradshaw Estate

[Testator made some markings]

Testator was on his death bed. A pen was put in his hand to have him sign, he made two strokes and a further mark. Died shortly afterwards. Question was whether the markings constituted a signature.

TEST: Whether the markings placed by the testator was a personal act or acknowledged as such by him to verify the making of the will as his own act

Re White[Someone helped make mark]

Testator had a stroke and had to sign with a mark. Testator could not make the mark himself so he had someone help him

Held that the testator had signed himself: even if it counts as the testator directing someone else to sign, it would be sufficient because there were witnesses

Peden v Abraham

[Mental participation]

Testator was extremely ill. Doctor took his hand and traced his name. The testator could not say a word before, during, and after the whole ordeal

Held that the deceased’s physical condition at the time was that he could neither object nor consent and thus held the will to be invalid Not valid because no mental participation

Re Shafner

[acknowledge signature]

S37(1)(b) provides for a testator acknowledging a signature already made. Court in this case summarized the following:

(b) Testator may acknowledge by gesture (whether speechless or not) (c) No sufficient acknowledgement unless witness saw or might have seen the signature (d) When witness seen or might have seen, express acknowledgement is not necessary,

mere statement that the paper is his will, or direction to them to put their name under his, or even a request by the testator or some person in his presence to sign is sufficient

(e) When the papers are seen or expressly acknowledged, witness do not need to know the document is a will

D. WITNESS

1. CAPACITY

WESA40 Requirements (1) 19 years or +

(2) May witness even if receives a gift, but gift may be void (3) Will is not invalid if witness becomes incapable of proving the will

o Amendment: Is invalid if witness is under 19Note

Age to make a will is only 16 (not 19)

2. WITNESSES’ SIGNATURES

Re Brown

[not signing in front of witnesses]

WM wrote out the will in long hand, had her nurse sign it. WM and nurse went downstairs and got a second witness. WM acknowledges the signature as her’s. Second witness signed it in the presence of WM and nurse. Court held the will as invalid because nurse did not witness the acknowledgement

Witnesses do not need to attest and subscribe the will in the presence of each other, just the testator

The testator’s signature must be made or acknowledged in the presence of 2 witnesses who must both attest and subscribe the will after the acknowledgement (Witness signature must come last)

Re Wozciechowiecz

[seeing the signing]

Deceased signed the will in hospital while extremely ill. Witnesses were the lawyer and another patient. Evidence shows that it is unlikely the deceased could not see the witness signing from the position he

Held the will to be invalid because the testator could not have seen the witnesses signing the will Presence requires mental presence not just physical


was in

E. PRESUMPTION OF DUE EXECUTION

Rebuttable Presumption of Due Execution: If the will on its face appears to have been duly executed by the will-maker and the two witness presumed to have been validly executed even if the witness have no recollection

Rebuttable Presumption of Knowledge and Approval: If there is actual proof that the will was read over and understood by the WM + signed + no suspicious circumstances presumed to have knowledge and approval

Yen Estate v Chan

[Presumption of Due Execution]

Court held that the presumption of due execution was in place, and that the testator had signed the will and there was no suspicious circumstances, thus the will was valid

Presumption of knowledge and approval confirmed Presumption of Due Execution: The testator’s execution of the will + lack of suspicious circumstances creates a rebuttable presumption that testator had knowledge of and approached the content of the will

F. INCORPORATION BY REFERENCE, SECRET TRUSTS AND “POUR-OVER” CLAUSES

1. INTRODUCTION

Concept: Doctrine of incorporation by reference, secret trusts and “pour-over” clauses are distinct and separate legal doctrines

2. INCORPORATION BY REFERENCE

Concept: If the will references a document outside the will, reference is only valid if it satisfies the requirements in Re Jackson

Reference can (1) become a legally binding part of the will or (2) be a wish

Re Jackson

[Incorporation by Reference Test]

Testator made a will in 1975 that did not mention a memorandum made in 1975. Her will made in 1978 mentions it. Court held the memorandum is admitted to probate b/c she reviewed it at the execution of the 78 will and allowed it to stand.

For a document to be incorporated by reference(a) It must be in existence at time of execution(b) It must be described as then existing(c) It must be in such terms that is capable of being

ascertained; and (d) The will must not state that the document is not

to form part of it

3. SECRET TRUSTS

Background: Secret trusts is when a gift is made but the intent is that the recipient takes certain steps with it

Full Secret Trust Will-maker makes an absolute disposition in favour of a beneficiary on the face of the will, but the will-

maker informs the beneficiary and the beneficiary agrees that the property is actually held in trust for the person the will-maker really wants to benefit

o Communication by will-maker and acceptance by beneficiary may be oral or in writing but must occur before the death of the will-maker

Also applicable in intestate situations, just the communication must take place between the deceased and his intestate heir

Half Secret Trust Will dispose of property to a person as a trustee, but terms of trust are communicated outside of the will


o Communication and acceptance must take place before the execution of the will

4. “POUR-OVER” WILLS

Background: A pour over will describes a situation where a will directs that estate or some portion be added to an inter vivos trust Such device was always void at English common la

Re Kellogg Estate

[Pour Over Clauses are Not Allowed]

Testator has a “pour-over clause” in his will that states the residue of his estate to be held on the terms of the trust

A gift also cannot pour over to be held by the trustee on the basis of the Amendment because the effect would be to allow the testator to amend the will without compiling with the Wills Act

G. CODICILS AND ALTERATIONS

1. CODICILS

Introduction: Short of revocation and a complete redrafting, a will may be amended by a codicil or an alteration on the face of the will

Note, law of law making applies to codicils

2. ALTERATIONS

WESA54

Alterations (1) Valid alteration must be made in the same way that a valid will is made under S37(2) Will-maker and witnesses must signature (should be as close as possible to the change)(3) Alteration that is not made in accordance to this provision is invalid, except if

(a) It is to invalidate a word that the alteration makes illegible and the court does not reinstate the original word under S58(4) or

(b) The court orders it to be effective under S58(4) Alteration that does not comply is valid if the alteration does not substantively alter the effect of the will

In the Estate of Oates

[Added Words to Handwritten Will]

Testator had two wills that are almost the same. The second will was changed by adding “and personal” so that it reads “real and personal property”

Onus on the person who would benefit if the will is admitted to probate to establish that the words are written before the execution of the will

Look at testator’s intentions

In the Goods of Itter

[Pasting over original will]

Testator made alterations by pasting over original will. Alterations not witnessed. Expert conclude what the original will contained after infra-red investigation

There was the intention of the testator to only revoke those parts covered by the slips if the new provisions are effective since ineffective, the slips could be removed and steps should be taken to read what was there before

PART 2: WITNESSES AS BENEFICIARIES

H. THE LEGISLATION

WESA43 Gifts to

WitnessesGift to witness or spouse of witness is void unless Court orders the gift not void upon being satisfied that the will-maker intended to

make the gift to the person even though they’re a witness Extrinsic evidence is admissible

Note Hammond v Hammond: Court did not have the power to grant relief to a beneficiary who had witnessed a will


I. THE CASE-LAW

Re Cumming

[Favourable Term for Sale of House]

Testator directed executor to sell the house to A on favourable terms on death. A’s wife witnessed the will. Is the direction void? Court held yes

Held that this direction was intending to confer a beneficial interest, and thus, since the wife was a witness, the “gift” was void

Re Ray’s Will Trust

[Nun to Abbess]

Testator left her property to the abbess of the convent. One of the witness to the will (who was not the abbess at witnessing) later become the abbess at testator’s death

Held that the will remains valid as it was left to the person who was in the position of the abbess and the witness at the moment of witnessing did not obtain any beneficial legacy or interest

Re Royce’s Will trusts

[Remuneration]

Testator has a will that contained a remuneration clause. Question is whether the witness (T, a solicitor) could benefit under the will? Court held yes

T was not a beneficiary under the will, and thus did not receive any beneficial interest at the time of witnessing the will

A person should not be disqualified if that person did not gain when he attested the will and only subsequently became interest under some later event or act

Gurney

[Witnessing the codicil]

Gurney left $100 to Fry and a share of the residue of his estate to Temple. Fry and Temple were not witness to the will but were witness to 2 later codicils of Gurney. First codicil had the effect of increasing the value of the residue of the estate

Court ruled that because they didn’t take benefit under the codicil, the witness of the codicil was valid (they took under the will)

Anderson

[Republication]

Anderson was a B under a will, his wife was a witness. Testator later made a codicil, witnessed by other witnesses. Question was whether Anderson can take the gift? Court held yes

Court held that the codicil was a properly witnessed republication and confirmation of the will, and thus, the gift to Anderson is valid

Jones v Public Trustee

[B witnessed the Will]

Testator left gifts to A & B. The will left the residue of the estate to be evenly divided between A, X, and Y. A & B witnessed the will. Court held the specific gifts to A & B failed and fell to the residue + residual gift to A also failed

There are two approaches that can be taken if the gift is rendered void by legislation re: witnessing:

1. The will be read as if the legatee is blotted out by the testator (Re Clark, Farewell v Farewell)

2. (ii) Assets should first be apportioned then legislation applies (Aplin v Stone, Re Fry, Re Doland, etc) (Held for (ii))

Re Estate of Le Gallais

[Charging clause]

Testator’s will contained a charging clause that benefited her executor, who was also a witness to the will. Challenged under S43(1), but the witness tries to argue S43(4)

Court held that the testator intended to make a gift to the witness. Factors considered: close and long relationship // sophisticated testator // aware of costs as she worked on a similar matter before // witness was testator’s PoA


WILLS – CAPACITY AND RELATED TOPICS

Who can make a will? 16 years or older + Must have competency

Common Challenges to Wills Validity1. Invalid execution2. Lack of knowledge and approval3. Testamentary Incapacity 4. Undue Influence and Fraud

Burden of Proof at Common Law Onus of establishing validity is on the propounder of the will Burden shifts to attacker of will to prove otherwise if:

o Will was duly executed with requisite formalitieso Will was read over to or by will maker

If suspicious circumstances are established, burden shifts back to propounder with respect to:o Knowledge and approval; ando Testamentary capacity; o Not Undue influence

A. AGE

WESA36

Age Req. Will-maker must be above 16, anyone below does not make a valid will

B. OVERVIEW-CAPACITY, KNOWLEDGE AND APPROVAL, UNDUE INFLUENCE, FRAUD

Vout v Hay

[Doctrine of Suspicious Circ.]

Standard of the Test: Balance of Probabilities but scrutinized in accordance with the gravity of the suspicion (Re Martin)

o The above standard applies to any “well-grounded suspicion” (Tyrrell v Painton) Suspicious circumstances may arise in:

o circumstances surrounding the preparation of the willo circumstances tending to call into question the capacity of the testatoro circumstances tending to show that the free will of the testator was overborn by

coercion or fraudo Note, the circumstances have to raise a specific and focused suspicion, not a

general suspicion Presumption: If the will was duly executed with the requisite formalities, after having been

read over to or by a testator who appears to be understand approved and valido Suspicious circumstances does no more than to rebut this presumptiono Knowledge and approval and capacity must still be proven or disproven o Presumption merely cast an evidential burden on those attacking the willo Evidential burden can be satisfied by the introduction of evidence of suspicious

circumstances “Evidence which, if accepted, would tend to negative knowledge/approval/capacity’


C. MENTAL CPACITY

1. THE GENERAL LAW

Concept: Capacity is not a bright line, not static, not always one-directional can go in-and-out of capacity Timing is key : Where is the person at when they gave instructions to make the will? Note: Medical evidence is important but not determinative

Bank v Goodfellow

[Test for Testamentary Capacity]

B has been confined to an insane asylum and suffered from delusions, and there were a medical evidence that he was insane and incapable of managing his affairs. He later created a will

Test for Testamentary Capacity1. WM must know what a will is- that it disposes of will-

maker’s property on death;2. WM must understand the extent of property will-

maker is disposing of;3. WM must have in mind family and others who would

be the natural objects of will-maker’s bounty;4. WM must be suffering no disorder of the mind that

would “poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will….”

Other points: Capacity is not a bright line test Timing: Where is the person at when they gave

instructions Not a medical test, is a legal test

Lazlo v Lawton

[Delusions]

Capacity: Must have baseline level or mental acuity sufficient to appreciate the judicially delineate components of the nature and effect of the testamentary act

The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way

o The nature and extend of his propertyo The persons who are his beneficiaryo The testamentary provisions he is makingo Capacity to appreciate the above factors in relation to each othero Capacity to form and orderly desire as to disposition of property

Does not need to be in a perpetual state

Delusions: Delusions are a persistent belief and supposedly state of facts that no rational person would believe, And does exist as real only in the mind of the believer

It is more than just “getting the facts wrong” No basis for denying capacity where delusion exists but does not influence testator’s

decisions in making the willO’Neil v Royal Trust[Delusions]

Testator claims that dead husband speaks to her and wants her to leave her estate to the grand-nieces of him

Delusions must constitute an “actual and impelling influence” on the dispositions in the will

Simon v Byford

[Capacity]

Testator did not need to understand a gift that would, in combination with assets already owned by a beneficiary, give the beneficiary a majority interest in a company

Do not need to understand collateral consequences It’s about the capacity to process what’s in your head (potential to understand), not what

is in your head (memory) Royal Trust v Rampone

Defendants challenges probating a codicil because testator was not a

A testator and be incapable of managing financial affairs but capable of making a will


[Different standards]

sound and disposing mind. (Declared an incapable of managing his own affairs by reason)

Court held codicil to be valid because there are different tests for capacity for different functions

Re Bohrmann

[Delusion]

The will is attacked on the grounds that testator was a paranoid psychopath

Someone who lacks “human instinct” and “common understanding in the matters of affection” by reason of mental illness or personality disorder is not necessarily incapable of making a will

Insane delusion provision can be severedKey

[Mental Illness]

Testator’s will is challenged on the basis that he suffered from significant short-term memory loss +incredible emotional toll for the death of his wife

Testamentary capacity can be impacted by mental illness such as depression or bereavement

Parker v Felgate

[Capable not capable]

Testator was in and out of a coma. When she is awake, she is not perfectly rational. The witnesses stated that one the lawyer asked the testator “This is your will. Do you want this lady to sign it?”, the testator responded “yes”.

a person has given instructions to a solicitor to make a will when capable, and the solicitor prepares it accordingly, all that is necessary in terms of capacity to execute is that the person understands:

(1) That they instructed their lawyer to make a will(2) That what they are signing is the document that

they instructed their lawyer to makeCreated a lower threshold for capacity to ensure that testator’s wishes are followed

D. KNOWLEDGE AND APPROVAL

Wintle v Nye

[Capable not capable]

Respondent in the solicitor that had been the legal adviser to the testator and her family for many years. The solicitor took the residue of the testator’s estate under the will

A higher level of scrutiny will be applied to a will in which the person who drafted the will takes a large benefit

There’s a duty to bring home to the mind of the testator the sect of his testamentary back, and point out the failures to perform that duty might amount to greet less degree of fraud

Russell v Fraser [Know magnitude]

In order to have knowledge and approval of the contents of the will, it is necessary for the will maker to be aware of the magnitude of the residue of the estate

To have knowledge and approval, a testator needed to “appreciate the effect of what she was doing”

Maddess v Gidney

[Tax implications]

Validity challenge on the grounds that the testator did not have knowledge of the will

In order to have knowledge and approval, the testator must know the value of the residue of the estate

But, Hoffman v Heinrichs: Precise value of assets not necessary general understanding is likely going ok

The tax implications of the will are not necessary to be understood in order for will maker to have knowledge and approval

E. UNDUE INFLUENCE

WESA52

Challenging on Grounds of Undue Influence

A person can challenge a will or a provision by claiming that a person is (a) in the position what the potential for dependents or dominance of the testator and (b) uses this position to unduly influence

Onus on the party seeking to defend the will or to uphold the gift to establish there was no undue influence if that person was in a position where the potential for dependence or domination was present

Just need to prove position, does not need to prove existence


COMMUNITY CARE AND ASSISTED LIVING ACT18(3) Licensee

can’t doA gift under a will to an employee of a community care facility (or their spouse, relative or friend) is void if the PGT has not given written consent.

HOSPITAL ACT4.1(2)(c) Can’t do A gift under a will to an employee of a private hospital (or their spouse, relative or

friend) is void if the PGT has not given written consent

LSBC: CODE OF PROFESSIONAL CONDUCT3.4-38 Lawyer gift A lawyer must not prepare a will under which the lawyer takes a gift

Wingrove

[Undue Influence]

Undue influence must amount to coercion. Influence is permissible, even bad influence, only undue influence amounting to coercion invalidates a will

Coercion can be physical (inc. confines or violence) or mentally

Banton [Degree of Influence]

Husband got testator to write a will that left everything to him on her death bed

Influence must be “so great and overpowering that the document reflects the will of the [influencer] and not that of the Deceased

SOLICITORS’ RESPONSIBILITIES AND LIABILITIES

Re Worrell

[Study of Shit not to do]

(How did he get called?)

Solicitor fucked up: drafted a will for a person he never knew or saw. Did it without any knowledge of the size & nature of the estate, and on instructions of a person who will receive a large portion of the estate. Kept no documents after giving it to that shady mofo

Shit the Lawyer should not have done: (a) Had never acted for the WM // (b) Never saw the WM // (c) No information re: size of estate // (d) Will benefited person who consulted // (e) When drafting, changed disposition instructions without consulting WM // (f) Gave will to beneficiary to arrange for execution // (g) No docket entries nor records of instructions

Whittingham v Crease

[Negligence]

Lawyer drafted up a will with a gift to A. A’s spouse signed as witness after confirming it’s okay with the lawyer. Gift invalidated (lol!)

Held that the lawyer was negligent as he failed to exercise the “reasonable degree of skill, knowledge and care that would be expected from any lawyer undertaking to supervise the execution of a will” breach of implied duty of care cause of action for the plaintiff

Wilhelm v Hickson

[Negligence]

Lawyer drafted a will that was ineffective b/c the testator did not own the land gifted (his company did). The estate all went to residuary legatees.

Case lists reasons to and not to recognize a duty of care between a lawyer and a third party Held in this case that the lawyer’s negligence caused the lost (don’t trust what your client tells you!)

Hall v Bennett

[No will drafted]

Lawyer was called on to draft a will. Interviewed the client. Did not draft will b/c lawyer thought the client lacked capacity. Client died intestate

Relevant question was not “did the client have capacity?” but whether the lawyer could reasonably and prudently conclude he did not have capacity to make a will

DoC between lawyer depends on whether there is proximity and foreseeability (usually retainer creates proximity)

PGT v Gill

[Lack of capacity]

Defendant law firm prepared 2 wills, both invalid on the basis that testator lacked capacity. PGT sued to recover costs of drafting. Court dismissed.

Court held that the legal duty of a solicitor is an obligation to consider and advise upon capacity where the circumstances raise doubt in the mind of the reasonably competent practitioner


INCAPACITY PLANNING

PART 1: INTRODUCTION

Three documents available to individuals:(a) Enduring Power of Attorney (EPOA), conferring an attorney the power to make financial decisions(b) Representation Agreement, conferring a representative the power to make personal decisions and

limited financial decisions in some circumstances(c) An Advance Directive, giving direction on how health care is to be (or not to be) given in some

circumstances

PART 2: ENDURING POWERS OF ATTORNEY – All sections = Power of Attorney Act unless stated otherwise

ENDURING POWERS OF ATTORNEYINTRO Donor may confer the power to engage in inter vivos dealings with the donor’s property on behalf

of the donor (donor-attorney = principal-agent) Extent of power depends on terms (general or specific) EPOA can be created to continue to operate despite incapacity of the donor

DEFINITIONS 10, “enduring power of attorney” – A power of attorney in which an adult authorizes an attorney to make decision on behalf of the adult or do certain things re: financial affairs, and that continues to have effect while the adult is incapable10, “personal care” – Inc. the following matters: (a) diet, dress and hygiene; (b) health related activities (inc. medication); (c) social, recreation, employment and educational activities; (d) shelter10, “financial affairs” – Inc. business and property, and the conduct of the adult’s legal affairs8, “powers” – Powers that continued notwithstanding incapacity is permitted

WHO CAN MAKE (S11, S12)

Must be an adult Presumption: Adults are presumed to understand the nature and consequences of making,

changing and revoking an EPOA S12(2): Adults must understand all of the following:

o Property and approximate value.o Obligations owed to dependantso Scope of authority grantedo Failure to manage property prudently may result in a decline in value o Possibility of misuse of authority o Power may be revoked o Any other prescribed matter

ATTORNEYS (S18)

Following may be named as an attorney:(a) Adult individual(b) PGT;(c) Trust company

The following may not be named with respect to an individual:(a) Paid healthcare professional unless they’re a child, spouse or parent of the adult(b) Employee of care facility that adult lives at may not, unless child/spouse/parent(c) Minor (but can be an attorney once they become an adult)

S18(4), (5): If there are 2 or more attorneys:(a) they may be assigned different or the same areas of authority(b) If same, presumed to be co-attorneys, unless powers state otherwise(c) If co-attorney, must be unanimous, unless powers specified

(i) that they need not be unanimous (ii) provide how to resolve conflict


(d) If alternative, power must state circumstances when authorized to act and limits if any on the alternate

MAKING AN EPOA (S16)

EPOA must be (1) in writing, (2) signed and dated in front of 2 witnesses, and (3) signed by both witness in front of adultWitness cannot be: An attorney, or the spouse, child, parent, employee or agent of an attorney // minor // person who can’t communicate w/ the adult

Exception : If attorney = lawyer, notary, Public Guardian and Trustee, or financial institution, their employees or agents can be witness

If power used for LTA , witness should be lawyer or notaryATTORNEY SIGNING (S17)

Attorney can’t act until they sign in front of 2 witness (1 if a lawyer), but doesn’t need to sign in front of the adult or any other attorney

Attorney who has not signed is not obliged to give notice that he is not willing or able Failure of one attorney to sign does not affect the other attorney (can contract out of)

DATE EFFECTIVE (S26, S27)

S26: EPOA is effective on the latest of: 1. The date by which the adult and attorney has signed2. The date stated to be the start day3. The occurrence of a specific event that brings the power into effect

S27(1): If power becomes effective when adult still capable, adult can still do the things the power authorizes an attorney to do

CHANGING/ REVOCATION (S28)

(1) Capable adult can change or revoke at any time(2) Must give written notice to each attorney(3) Change be in same manner as creating an EPOA(4) Effective from time notice is given (5) Change is binding, unless attorney resigns

TERMINATION/ SUSPENSION (S28, S29(2), S30)

S28: Capable adult can revoke EPOA S29(2): POA Authority ends when:

(a) EPOA is terminated(b) Provisions giving power are revoked(c) Attorney reigns(d) If the attorney: Marriage ends (can contract out of) // becomes incapable or dies // is

bankrupt // (Corporation) dissolves, winds up or ceases to carry on businessS30: EPOA Authority ends or is suspended when

(a) If adult = incapable after making EPOA, any authority given continues(b) Adult can set out situations to suspend(c) EPOA is suspended according to the Patients Property Act(d) EPOA is terminated according to the terms // if adult who makes EPOA dies // if court

terminates it under S36(5) // If EPOA is terminated under S19 or S19.1 of the Patients Property Act // If EPOA is revoked

Note, Doctrine of Implied Revocation is itself by implication abolished by this sectionMAGIC WORDS (S14)

Must state if EPOA is operative if the adult is capable/incapable or both, and if it continues despite incapacity

GENERAL POWERS

S13: Can confer power to make decision re: financial affairsTwo general limitations:

S15: Can’t do anything illegal or omit to do something required by law S21: Can’t make or change a will for the adult

SPECIFIC POWERS

POWER OF ATTORNEY ACTAdult’s Property

S20(6), S20(7)

Person having custody or control of the adult’s property must deliver the property to the attorney (other than a will if expressly noted to be delivered to an attorney)

Information and Records

S32 Attorney may request information from 3rd party re: the attorney’s area of authority or adult’s incapacity

Same right to get information and records as the adultAssistance S20(4) Attorney may retain qualified individuals to assist them (S20(4))


and Delegation

, S23 S23: Prohibits an attorney to delegate decision making authority except if they are made in accordance to legislation

Gifts and Loans

S20(1), S20(2), S20(3)

Attorney can only make a gift or loan in 2 circumstances:1. Authorized by the EPOA explicitly (either generally or specifically)2. Not authorized but:

a. There is sufficient property remaining to meet the needs of the adult, adult’s dependents or satisfy other legal obligations of the adult

b. The adult made the gift when he was capablec. Total amount is no more than a prescribed amount

i. Lesser of $5000 or 10% of the adult’s taxable income

Attorney may receive a gift or loan if EPOA approves itBeneficiary Designation

S20(5) Other than by will, attorney may:1. Change a designation made by an adult if court oks it2. Make a replacement designation if designation is the same as

that made by the adult while capable3. Make a new designation in a new instrument if the designated

beneficiary is the estate of the adult

DUTIESS19: Includes act in good faith, exercise skill of reasonably prudent person, act within authority, keep records, act in best interest of the adult, promote independenceS33: Confidentiality is important

Easingwood v Cockroft

[EPOA can make a trust]

Reg gave EPOAs to his two kids. The kids set up a trust for Reg’s assets. Reg remarries Kay. One kid dies, his wife takes alternate trustee position. Reg dies. New wife attempts to vary will

CA found that the attorney were able to make a trust (no prohibition) and reflected the terms of the will

Attorneys were allowed to set up trust as long as the trust does not step into territories prohibited by other general principles of law or statute prohibitions

McMullen v Webber

[Can’t stop stupidity]

McMullen gave his 3 kids EPOA. Remarries after death of wife (new wife = ½ his age) Kids transferred interest in his condo to themselves in fear that McMullen is squandering everything.

Court declared transfer to be void and held that the law cannot stop someone from doing foolish or improvident;

McMullen is entitled to live his life as he wishes unless and until he is found incompetent to manage his own affairs

Houston[Implied Revocation Rejected]

Testator has 1st POA to son & wife; 2nd POA to wife then son. Son severed JT owned by testator & wife 1 month before testator’s death. Did the 2nd POA revoke the 1st?

Second power of attorney does not automatically revoke the first

The severance of JT is held valid

PAYMENT & EXPENSES (S24)

Attorney is: Not entitled to payment unless EPOA okays it // Entitled to reimbursement for reasonable expenses incurred

If an attorney is to be paid, EPOA must set the amount or rate of compensationRESIGNATION (S25)

Req.: Written notice to adult & any other attorney If adult = incapable Notice to spouse, near relative or “close friend”

Effective from date given or a specified later dateLIABILITY (S22)

Attorney is not liable for loss or damage if attorney complies with duties in S19 or power or imposed by law or if attorney was acting under order of the court


PART 3: REPRESENTATION AGREEMENTS – All sections = Representation Agreement Act unless stated otherwise

REPRESENTATION AGREEMENTSINTRO RA are supposed to allow adults to appoint a “representative” to deal with the adult’s personal

affairs, financial affairs, or both, should the adult become incapable CATEGORIES Two different types of RA:

S7: personal care, health care and limited financial matters (more limited) S9: personal and health care only (full scope)

Health Care Personal CareHealth Care (Consent) & Care Facility (Admission) Act Representation Agreement ActMore about day-to-day things i.e. where you’re located More about shelter, employment, diet, dressDEFINITIONS 1, “adult” – Anyone 19 years or +

SECTION 7 AGREEMENTSWHO (S3, S4, S8) Capable adult may make RA Adult is presumed to be capable, unless contrary is

established Test of capability in S8REPRESENTATION AGREEMENT ACT8(1) Test of

IncapabilityAdult can me S7 RA even though adult is incapable of (a) making a contract, (b) managing his health care, personal care or legal matters, or (3) the routine mgmt of his finances

8(2) Factors to Consider

Factors to consider:(a) Whether the adult communicated a desire to have a

representative make, help make, or stop making decisions(b) Whether adult demonstrates choices and preferences and

can express feelings of approval or disapproval of others(c) Whether adult is aware that making the RA or

changing/revoking any of the provisions means that the representative may make choices that affect the adult

(d) Whether the adult has a trusting relationship with the representative

Note You can still grant S7 RA for something you do not have capacity for There is no threshold for capacity, the court just needs to consider all relevant

factors (but legislation won’t say what the bottom is)SCOPE (S7, S11) Representative can help make decisions concerning:

(1) The adult’s personal care, inc. the adult’s admission to care facility (2) Routine mgmt of the adult’s financial affairs(3) Major and minor health care (excluding: life-support refusal)(4) Legal matters (except divorce)

With some exceptions, major and minor health; but the representative may not be authorized (1) to make, or help the adult to make, decisions on the refusal of life- supporting

treatment; (2) to refuse consent in respect of matters under the Mental Health Act listed in s. 11(1); (3) to consent to sterilization for non-therapeutic purposes.

SECTION 9 AGREEMENTSWHO (S4, S9, S10) Capable adult (presumed capable): S10 test satisfied test for capacity is if adult is incapable

if he is ‘incapable of understanding the nature and consequence of the proposed agreement’SCOPE (S9) REPRESENTATION AGREEMENT ACT

9(1) S9 Reps can do

S9 representation can do anything that the representative considers necessary re: personal care or health care of the adult, or do any of the following:

Decide where the adult lives, with whom (care facility?) Decide if adult should work (and what kind of work) Decide if adult should participate in any education, social,

vocational or other activity


Decide if adult should have contact with another person Decide if adult should apply for any license Make day-to-day decision on behalf of the adult (inc. diet or

dress) Give or refuse consent to health care Physically restrain, move or manage the adult despite any

objection of the adult9(2) S9 Reps

cannot doS9 representative cannot do:

Give or refuse consent on adult’s behalf for S34(2) Health Care and Care Facility Act

Make arrangement for the temporary care or education of the adult’s minor children (dependents)

Interfere with the adult’s religious practices9(3) Preservation

of LifeIf representative is given the power to give or refuse consent to health care, they the representative may give or refuse consent to health care necessary to preserve life

NOTE Representative may not be authorized to refuse consent re: matters under the Mental Health Act & consent to sterilization for non-therapeutic purposes

REPRESENTATIVE AGREEMENTSEXECUTING (S13) Must be (1) in writing and (2) signed by the adult in the presence of 2 witnesses

Following can’t be a witness: representative, spouse, child, parent, or employee // minor // person who can’t communicate (Exception: Lawyer/notary employee can sign)

Representative signature need not be witnessed, but cannot exercise authority until RA is signed

WHEN EFFECTIVE (S15)

RA becomes effective when it’s signed, or on date of later event (RA must specify how the later event is confirmed and by whom)

Prescribed forms for S7 RAs invalid unless use it COURT DISCRETION

S32(4): Court can order a RA to be invalid solely b/c it was improperly executed

CAPACITY S36: Capable adult can continue to do anything the RA authorizes to do RA is not terminated solely because the adult later becomes incapable of making an

RAWHO CAN BE REPRESENTATIVE

S5: Representative can be an adult or a public guardian and trustee S5(1)(c): Credit union or trust company can be appointed as representative if RA does

not include health or personal careThe following people cannot be appointed: Personal health care professional & Employee of care facility

MULTIPLE REP (S5, S6)

Multiple: Can be assigned same or different areas of authority If same must act unanimous (unless otherwise provided by RA)

Alternative: Must specify what circumstances in which the alternate can act, and any other condition attached to the alternate’s powers

RESIGNITION (S19.1)

Representative can resign by giving written notice to the adult, other representative, and monitor

Notice is effective when all required notice is given or at a later specific dateDURATION (S9.1) RA not terminated solely because adult becomes incapable of making an agreementDUTIES REPREENTATION AGREEMENT ACT

16(1) Duties Representative must Act honestly and in good faith, exercise care, diligence, and skill of a reasonably prudent

person, and Act within the authority of the RA

16 Consultation (2) Representative must consult with the adult where it is reasonable, and comply with those requests if it is reasonable

(2.1): No consultation if representative is acting under S9 RA and RA provides that representative only need to comply


with wishes expressed while adult is capable(3) If (2) applies but adult current wishes cannot be determined or cannot be reasonably complied with, representative must comply with instructions given while adult was capable

Information Disclosure

Keep shit confidential unless must disclose (and only disclose as much as necessary)

POWERS (S17, S18, S19)

Rep can retain qualified help, can request 3rd party information re: area of authority Even if representative no long has authority under RA, actions taken on behalf is

binding on the adultEXPENSES AND PAYMENT (S26)

Entitled to be reimbursed; Not entitled to remuneration unless authorized by RA and authorized by PGT Act + court approves

LIABILITY (S23) If complies with S16, not liable for death or injury of adult & loss or damages arising from routine mgmt of financial affairs

ADVICE AND DIRECTIONS (S34)

Rep may apply to PGT for guidance on anything & court for director/opinions re: interpretation of RA

MONITORS (S12) Meant to be a supervisory role (ability to check up on rep by asking questions) Adult making a RA has a choice to name a monitor or not (19+, willing & able,

complete form) Monitor is mandatory in S7 RA if rep is entrusted with routine mgmt of financial affairs

(unless rep is spouse, PGT, trust company or a credit union; or if 2 or more rep required to act uniramous)

If a monitor is not named when required, any authority to deal with routine mgmt of financial affairs is invalid

PART 4: ADVANCE DIRECTIVES – All sections = Health Care (Consent) and Care Facility (Admission) Act unless stated otherwise

ADVANCE DIRECTIVESINTRO Health Care (Consent) and Care Facility (Admission) Act, HCCFA, makes provision for the consent

to or the refusal of health care by or on behalf of an adult Not applicable to sterilization & various provision of the Mental Health Act

DEFINITIONS 1, “advance directive” – Written instruction by capable adult that gives or refuse consent for health care in the event the adult is not capable of giving instructions1, “close friend” – Adult with long-term, close personal relationship + frequent contact 1, “near relative” – adult child/parent/grandparent/adult bro-sis, spouse of any

REQUIRED CONTENT

S19.1 – Adult must be capable of understanding the nature and consequences of the AD; incapable when the adult cannot understand the scope & effect S19.5 – Must be signed by adult in presence of two witnesses (unless witness is lawyer/notary); similar restrictions on witness to RA

WHEN APPLY (S19.7)

Applies when.. Adult is incapable and needs care and Does not know of any personal guardian or representative and is aware of relevant AD Directive can either give or refuse consent (often the latter) Medical representative is not required to make more than a reasonable effort to find a

representative WHEN DO NOT APPLY (S19.8)

Does not apply … In respect of: prohibition by law & not covered by the directive When instructions are so unclear that it cannot be determined if its giving or refusing consent To wishes, values, beliefs in relation to health care decision was significant changed and not

reflected in the document When there is significant changes in medical knowledge, practice and technology (can opt

out) RA + AD? (S19.3)

If there is both an AD and a RA (regardless of order made) … RA may say that the AD may be effective If not, then AD does not apply so far as it relates to matters under the RA (Directive is


treated as a wish to be followed by the representative) Bentley

[Spoon Fed]

Bentley’s will contained a “no nourishment or liquids” clause (doesn’t want to be kept alive if she can’t feed herself).

Care facility’s action is a form of personal care (not health care) there is also no substitute decision maker (no default decision-making scheme) available

Held that denying necessity of life = assisted suicide = criminally punishable

PART 5: PARTIENT’S PROPERTY ACT – All sections = Patient’s Property Act unless stated otherwise

COMMITTEESHIPINTRO Court has the power to declare someone incapable as to either person or estate (or both) and can

appoint a committee to manage that person or their estate or bothDEFINITION 1, “patient” – Three ways to become a “patient”

(1) Certified under the Mental Health Act when in the mental health facility or psychiatric unit(2) Statutory property guardian under Adult Guardianship Act (A way of being certified) (3) Declared incapable by judge under Patients Property Act (done by petition)

1, “committee” – Committee means a person who Is appointed as a committee under S6(1) Is a PG&T under S6(3) Is a statutory property guardian appointed under Adult Guardianship Act

Where a person becomes a patient but no committee appointed, the PGT steps in automatically COURT PROCESS

Private Committee Purpose(Usually a family member initiated) Petition seeking declaration of incapacity and appointment of committee; In order to get this order:

There must be two doctors’ affidavit and they will need to give evidence about their reasoning

Affidavit of applicant “kindred and fortune” Notice to the PGT Notice to patient can be dispensed with on medical evidence

o If it is possible that the patient will understand it and it won’t be harmful, then you must serve them with notice as well

Security may be requireAUTHORITY All the rights and powers re: estate as patient would have

Custody of the patient Can litigate on behalf of the patient Exercise powers for the benefit of the patient and family (S18)

o Having regard to nature and value of property and circumstances and needs of patient and family

Must foster independence and encourage patient’s involvement in decision making O’Hagan

[Approved: No diminution of estate]

Committee sought court approval for reorganizing the company held by the adult so that they may minimize tax impact on the death of the adult. The reorganization would pose no real disadvantage to the adult.

In situations where a gift or other diminution of the patient’s estate is proposed, the committee should be reluctant in the absence of some compelling reason (i.e. necessity)

In making such a decision, the patient’s own interest, both present and future, must be given paramount importance

Bradley Estate

[Not Approved: diminution]

Mr. Hauptmann was the committee of his wife (incapacitated) who has a sizeable estate, he wanted to gift some money of his wife’s estate to himself and her sons to avoid the US estate tax.

If the proposed gifts were changing the character of the asset but not the quantity, then the court may be more likely to approve it since it’s not shrinking the safety net that is the person’s asset by benefiting the family

EFFECT ON PLANNING

Committeeship ordered by court terminates PoA + RA too (unless court orders otherwise) Committeeship by certificated suspends PoA and RA until PGT decides whether to act (If

PGT acts, then PoA & RA = terminated) DEATH OF A Committee continues to have power as if personal representative until probate or letters of


PATIENT administration No power to distribute Committee must account to executor/administrator (or if same person then to beneficiaries)

ABORIGINAL ESTATES

Threshold Question: How to know if you have to deal with the Indian Act? (1) Is matter and cause testamentary?

o It must be connected to a testamentary intent (2) Was the deceased ordinarily resident on the land?

o There must be an intention to return to the reserve and reside there o “Ordinarily resident”: Customary mode of life, intentions of the individual

Benefit of Indian Act Con of Indian ActNo probate fees The minister’s decision is a black box there’s no

transparency regarding the results Simpler process with less paper work and bureaucracy

INDIAN ACT40 Powers of

AdministrationUnder the terms of the Indian Act, if you are a registered Indian, you qualify for certain benefits

42 Jurisdiction All jurisdiction and authority with respect to matters and cause testamentary, re: deceased Indian, is vested exclusively in the minister and shall be executed subject to an in accordance with the regulations of the governor in council

43 Powers of the Minister

List is not conclusive (a) appoint or remove executor of wills and administrators of estates (b) authorize executor to carry out the terms of the deceased’s will (c) authorize administrators to administrate (d) carry out the terms of the will and administer property of intestate estates (e) make or give any order that is necessary or desirable (in Minister’s opinion)

44 Minister can direct the aboriginal’s estate to be administered by the jurisdiction that would have authority if the aboriginal was not aboriginal

45 Wills – Creation

Minister can approve any written instrument signed by an Indian in which he indicates his wishes re: disposition of property and body (must be approved to have legal force)

46 Wills – Void If

(1) Minister can void the will in whole or in part if the Minister finds that: (a) will was executed in duress or undue influence (b) testator lacked testamentary capacity (c) terms would impose hardship for someone the testator has a responsibility

to provide for (d) will purports to dispose of land in a way contrary to band interest or the Act (e) terms are so vague, uncertain or capricious that proper administration and

equitable distribution would be difficult or impossible according to the Act (f) terms against public interest

(2) If will deemed void in full person would be deemed to have died intestate; If will declared void in part any bequeath affected would be deemed lapsed

47 Appeals Person can appeal the minister’s decision within 2 months to the federal court48 Distribution on Intestacy50 Person not entitled to reside on land does not acquire a right to possess/occupy by devise/descent 88 General laws of estate law applies unless the Indian Act states something different

Provonost v Canada

[Bequeath

Will of an Indian bequeathed real property to his two daughters in equal shares, with the wife having the right of occupancy as long as she

The right of an Indian over the land while may seem like a life-estate, does not preclude it being subjected to testamentary disposition

Registered Indian cannot leave land to non-registered Indian or someone not part of the band

Minister’s power of approval is an administrative power, not a quasi-


of Land] lives judicial power

REPUBLICATION, LAPSE AND ADEMPTION

PART 1: REPUBLICATION

Definition: Republication: Effect of making of a codicil A valid codicil changes the date of the underlying will to the date of the codicil

WESA57(3) Revival of

WillIf the will has been revived by a codicil or has been re-signed in front of 2 witness the will is deemed to be made at the time it was revived or re-signed

Republication shifts the date of the will to the date of the codicil

Re Hardyman

[Court allowed Second Wife to Take as a Wife]

Testator created a trust in favour of her cousin and his wife. First wife later dies. Testator was aware of this. Testator made a codicil, made no mention of the cousin. Testator died. Cousin remarries. Question is whether the second wife can take under the will? Court held yes

Republication is a flexible tool to enable the court to ensure that the will and codicil are interpreted in a way that is consistent with the testator’s intention, by ascertaining the testator’s wishes on the latest date on which they have expressed

Re Reeves

[New Lease Passed to Heir]

Testator had a 7-years lease that was left to his daughter in his will. A new lease of 12 years was later signed. Testator made various changes to his will via a codicil but left the lease in place. Question was whether the 12-years lease passed to the daughter?

Codicil had the effect of republication, bringing the date of the will up to the date of the codicil

Smith v Rotstein

[Republication is a Tool, not Rule]

Testator died leaving a will and 4 codicils. Attacker of the will claims that if the codicil is found to be invalid based on lack of capacity, so will the will. Court said no

The rule that a will is made at the date when it is confirmed by codicil is not to be applied where it would defeat the intention of the will maker

PART 2: LAPSE

Definition: Lapse: Effect of the death of a beneficiary When a gift under a will fails

Definition: Class Gifts: Gifts defined with reference to a group not an individual When a gift to an individual fails, the gift lapse; but if a gift to a member of a group of class fails, then that

gift does not lapse but is shared by the remaining members who survive the WM

A. THE GENERAL LAW

WESA44 Residue of

the EstateWhere a will doesn’t dispose of all property (no residue clause), what remains pass on intestacy

46 When Gifts Cannot Take Effect

(1) If a gift can’t take effect, the gift must be distributed based on the following principles: (a) To the alternative beneficiary (b) If the beneficiary was a brother, sister or descendent to their descendent (c) To the surviving residuary beneficiaries

(2) If a gift cannot take effect because the beneficiary dies before the will-maker, (1) applies regardless of if the death happens before or after the will-maker’s

21 Lapses and Void

Lapses and void devises or bequests goes to the residue of the estate


29(1) Gift to Issue Predeceasing Testator

If a person dies in the lifetime of the testator and the person is an issue or brother or sister of the testator and they leave issues that are alive at time of testator’s death devise or bequest does not lapse take effect as if the gift was made directly to surviving issue

29(2) For situations where the issue has no kids but has a spouse, gift goes to the spouse

Re Stuart Estate [Pre-WESA]

Testator dies, leaving the residue to 13 heirs. One heir died before the testator. Question who gets the share of that one heir?

Court held that the 1/13 share will pass intestate because gift completely lapse

Re Mackie [No Lapse of Gift When Moral Obligation to Beneficiary Who Predeceases ]

Doctrine of Lapse will not apply if the disposition in the will was made pursuant to a moral obligation that rested on the maker of the will

Re Wudel[Pre-WESA: Oust the Legislation ]

Testator left 8% to grandchildren, 28% to sons, and 64% to daughters (residue). One daughter predeceased her. Question is how to divide the 64% then?

Court held that Testator’s will had a contrary intention to the legislation and that is supreme: thus, the estate is divided according to her

Wundel had her own anti-lapse provision (intention to contract out)

Re: Stella West

[Pre-WESA]

Stella had 2 kids: Darcella (deceased) and Kenneth. Darcella has 2 kids: Debbie and Danny. Kenneth has a kid: Melinda. Administrator states that the whole estate should go to Kenneth. Debbie and Danny argue that they should take their mother’s half. Court held for Kenneth getting the whole

According to the legislature, unless there is a contrary intention, Darcella’s share should go to Debbie and Danny Court found that the testator’s words “equal shares per capita for their sole use and benefit absolutely” means that the estate is supposed to only go to the children and if one dies, goes to the other

B. ANTI-LAPSE PROVISIONS IN A WILL

Re Davison

[Pre-WESA: Many Kids, Some Already Dead ]

Testator left the residue of the estate to the children, and if a child predeceased him, to the children of the child. Testator had 14 children, 4 of which pre-deceased him, 2 of the dead ones left kids.

Court applies more liberal approach and divides estate in 12 shares; This way, the children of the kids with dead parents can take it too

Re Greenwood[Pre-WESA: B’s Death Happened Before Testator but Construed as After ]

Testator provides an anti-lapse provision stating that if one of the beneficiaries predecease the testator, the gift does not lapse and should take as if the beneficiary’s death happened immediately after the testator’s. (Contracting contrary to general law)

Alternative gift not void for uncertainty even though the will maker may not know where the gift ultimately will go

The gift takes effect as if the death of B happened immediately after T’s

PART 3: ADEMPTION

Definition: Ademption: Effect of the disposition inter vivos of property disposed of in a will When the property gifted under a will is disposed of during the lifetime of the WM, such that the WM no

longer owns the property on his death

Church v Hill (1923)[Sale of Property Gifted]

Testator left real property to his daughter, but sold the property

Court held that a specific gift of the property will fail because the subject matter no longer exists

Rights to proceeds of sale is not the same thing as rights to the property; but might get right to proceeds

Trebett v Arlotti-Wood (2004)

[Specific v General v

Testator made a will disposing of the money held in an RBS account. Shortly after, testator transferred the money to

There are generally 2 classes of legacies – Specific: gift of severed or distinguished part of the

testator’s property, thus showing an intention that the property will pass in specie

o i.e. my grandfather’s gold watch


Demonstrative] Midland Walwyn. Question is whether the gift of the RBC assets have been adeemed.

General: legacy not a particular thing, but of something to be provided out of the general estate

o i.e. a gold watch Demonstrative: typically seen as a subset of general

legacies, now considered a hybrid: legacy directed to be satisfied primarily out of a specified fund or part of the testator’s property

o i.e. 100 to be raised out of the sale of my Surrey properties

Ademption does not occur where the specific property change “in name or form only” so that it “exists as substantially the same thing, although in a different shape”

Re Clement Estate (2007)

[Burning Man]

Man willed cottage to daughter and son-in-law. Man died in a fire that also burned down the cottage.

Because the WM died before the building was substantially damaged by the fire, subject matter of gift was still in existence at his death and gift did not adeem

WESA48 Relief from

Disposition of Property

If property that is a gift is disposed under a will by the nominee, the beneficiary is entitled to receive the amount equivalent to proceeds of the gift from the estate

1.1(1)

“nominee” Attorney under an enduring PoA, and a representative in a Representative Agreement

Doctrine of Satisfaction (CL) Presumption based on an assumption as to probable intent and can be rebutted Example : If will-maker makes a gift in the will to a child, then makes a larger gift inter vivos to the child, it

is presumed that the will-maker did not intend to benefit the child twice, so the inter vivos gift satisfies the gift in the will

CHAPTER 8: REVOCATION AND REVIVAL

PART 1: REVOCATION

A. THE LEGISALTION

WESA55(1) How to

RevokeWill is revoked when

(a) Another will is made (b) Written declaration in accordance with formalities (c) Will-maker burning, tearing or destroying the will with the intention of revoking (d) Any other act by WM (or at direction) that court determines under S58

55(2) No Revoke

A will is not revoked y presuming an intention to revoke because of a change in circumstancesMarriage // Accidental destructions // Destruction of the will by others except under the direction and in the presence of the WM // Changes in tax implications // New children

B. SUBSEQUENT INSTRUMENT

Background: Subsequent instrument usually start with a “revocation clause” Can be general or specific


o General : “I, John Doe, hereby revoke all former testamentary dispositions made by me and declare this to be my last will”

o Specific : “I, John Doe, hereby revoke all former testamentary dispositions made by me in relation to my company shares”

Note: Possible to only revoke the will in respect of some assets

Re Lawer[Pre-WESA: Evidence of Intention ]

Deceased left two wills: one dated October 29, 1962, the other dated May 23, 1978. Question was whether the ’78 will revoked ’62.

Held that both wills be admitted to probate since when the testator executed the second will, she only intended it to deal with the part of her assets not mentioned in the first will

Later will doesn’t automatically revoke former will if they can stand together

Indirect and surrounding evidence should be admitted and should be considered when analysing whether the will-maker is attempting to revoke the previous will

C. ACTS OF THE WILL-MAKER AFFECTING THE WILL

1. GENERALLY

WESA55(1)(c)

Intention A will is revoked by the WM (or at the direction), burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it

Re Norris

[WM tore up will, but did not have intention]

Will-maker torn up the will, puts it in an envelope and then into a black box. Later told his common-law spouse where to find the will and that it was his will

After considering all the surrounding circumstances, held that despite tearing it up, the WM did not have the intention to revoke

Re Adams

[Will-maker did the act and had intention]

Testator had a professionally done will that was found altered by heavy scribbling using a ballpoint pen

Presumption: Where there is a will that is destroyed or found mutilated, in a place where the testator would naturally put it… that the testator destroyed it, and that it was destroyed with the intention of revoking it

Test for when an obliteration constitute destruction: if the words are apparent, then they are not destroyed. If a person need to resort to any physical interference with the document, so as to render clearer what may have been written on it destroyed

2. LOST WILLS

Note: It is possible to submit to probate a copy of the will where the original cannot be found Presumption: If the will was last in the possession of the WM, then the presumption that it was destroyed with the intention to revoke must be rebutted

Sugden v Lord St. Leonards

[Presumption rebutted by evidence]

Will kept at home in an easily accessed location was missing. Question was whether the presumption that the will-maker was the one that destroyed it with the intention to revoke it was active. Court held that it was unlikely that it was the will-maker who destroyed it

Presumption of Destruction: A lost will is a will that has been destroyed by the testator for the purpose of revoking it, but it can be rebutted ITC, presumption rebutted by evidence

Lefebvre v Major

[ Lost Will]

Peter Pigeon made a will using his alias. His sister told him he fucked up. He withdrew the will to correct it, later, he (pigeon) mailed his sister telling her that he fixed it and filed the will in a bank in

The court analyzed the fact that Pigeon was a man who took great care of his will and held the will to be of great importance unlikely he destroyed the will himself


Vancouver Will was drawn up with the great love Pigeon held for his sister and that love did not change prior to his death

D. CEASING TO BE A SPOUSE

WESA56

Revocation of Gifts

(1) Can be contracted out of

(2)(a) Gifts to ex-spouses are revoked // (b) Appointment of ex-spouse is revoked // (c) Any power granted to a spouse is revoked //

Will is essentially interpreted as if the spouse had died

(3) Operation of (2) is not affected by a subsequent reconciliation between them

(4) Relevant time to determine(a) whether the person was a spouse is at the time of the will being made, or(b) whether the person became a spouse is at any time after the will was made and

before the spouse ceases to be a spouse

E. MARRIAGE

1. Abolition of Revocation by Subsequent Marriage WESA does not preserve revocation by marriage of the testator

2. Partial Revocation on Dissolution or Breakdown of a Spousal Relationship WESA, S43 extend definition of “spouse” to include common-law spouse termination of spousal

relationship will revoke the testamentary gift, appointment as executor/trustee, or power of appointment

F. DEPENDENT RELATIVE REVOCATION

In Re Jones, Decd.

[Test for Dependent Relative Revocation]

Mary had a will that contained specific devises. When she died, her will was found mutilated (particularly, the parts that contained these specific devises)

Test for Dependent Relative Revocation: (1) Did the testator mutilate the will with the intention of revoking it?(2) If the testator had an intention to revoke it, was his intention

absolute or qualified, so as to be contingent or conditional?(3) If it was qualified, what was the nature of the qualification?(4) If intention + qualified + conditional, has the condition or

contingency been satisfied or occurred?Ratios,

If the trust of a particular fact is a condition of the destruction, and the fact turns out to be not true, there is no revocation

Test summarized: Had the testator the intention of revoking? The intention may be condition, and if the revocation is subjected to an unfulfilled condition, no revocation

Re Sorenson

[Revocation not upheld due to false knowledge]

Testator had a will and replace her sisters with another person b/c he thought she was dead. Created a codicil to that effect revoking the previous will

Held that the basis for the revocation of the will in the codicil is a condition that the sisters were dead

The gift was to take effect only if the sister were dead (one of them wasn’t), and thus, the revocation was not intended to take effect

G. JOINT AND MUTURAL WILLS

Criteria for Mutual Will Agreement When to Use a Mutual Will Agreement?Binding contract: (a) Certainty of terms, (b) Mutual Where trust planning won’t work (Client not yet 65 or JT to


agreement, (c) Not just an agreement of honor be maintained) // Where the client won’t use a trust // Where outright ownership is desirable during lifetime // Where it is meant to govern all the assets both now and after acquired

Usually, Don’t Use Mutual Will Agreements Drafting Mutual Will Agreement Can be onerous by binding someone for life Need independent legal advice to create Inflexible to change in circumstances

cannot adapt and respond to circumstances Does not protect from creditors or variation

claims Can potentially cause disputes during the

lifetime of the survivor

Can either be in the will or in a separate agreement Must deal with what assets the agreement applies

to o First to die’s assets? Assets at what date?

All assets or specific assets? Survivor’s entitlement to use property

o What are the limitations? What are the rights?

o Beware of severing a joint tenancy How can the agreement be amended

o Under what circumstances can be agreement be changed?

Can build in and provide for flexibility to respond to changes in circumstances

Sanderson Estate

[Changing a mutual will]

Testators had a mutual will: terms are that the estate of the first spouse is to be held in trust for the surviving spouse for life or until remarriage, residue to the university to establish a scholarship. After death of wife, husband made a new will (terms inconsistent with mutual will’s terms). Court held for the mutual will.

The agreement contained a provision allowing the mutual will to be revoked by written consent of both parties anything less, such as conduct of the parties inconsistent with the will, is not sufficient for revocation in light of the clear mechanisms to revoke

Hargrave, Juridicial Arguments: If the mutual will is not revoked during the joint lives by any open act, the joint will stands after the death of one

PART 2: REVIVAL

WESA57(1)

Revival of Will

Will is revived only by a will that shows the intention of reviving it Intention is key: must be clear and express

57(2) If a will is revoked in part (pt.A), then in whole; the revival extends to everything except A57(3) If a will is revived by a codicil or been resigned in the presence of 2 witnesses, the will is

deemed to be made at the time of the re-signing 57(4) Cannot revive a will except (a) by an order of the Court under S58, or (b) in accordance with

any other provision of WESA that recognizes a revival

Re McKay (1953)

[Clear Intention Requirement]

Testator made a second will that states “I hereby revoke all Wills.. etc.” and thus revoking the first will made May 4. In her codicil prepared after the second will, it stated “This a first codicil to the Last Will… which Will bears the date the 4th of May

In order to revive a will, there must be words which make clear beyond doubt the intent to revive

Court focused on the intention of the testator and found that she was not attempting to revoke the second will

DISCLAIMER AND ABATEMENT FOR DEBTS

Background: Personal representatives are under a duty to administer the estate: gather in assets, pay debts and taxes and distribute to the beneficiaries


A. DISCLAIMER

Definition: Disclaimer is the giving up of an interest under a will (or a trust) Whether an interest is disclaimed is a question of whether the interests of other beneficiaries are

accelerated

In the Estate of Brannan

[Yes Acceleration: Remarriage Clause]

Wife had a will that left a life tenancy to the husband with a remainder to the sons. Husband attempts to disclaim so that the interest is accelerated in favour of their sons. Court held for acceleration.

There is a rebuttable presumption of acceleration but must look at the intention and specifics of the document

Interpretation: the intention of a testator means the intention of a reasonable person placing himself “in the testator’s chair”

De la Giraudias

[No Acceleration]

Estate left a life tenancy to Ruth with the remainder to the settlor’s children. Question: if Ruth disclaim her life interest, will the estate pass immediately to the children pursuant to the doctrine of acceleration?

Doctrine of Acceleration: The postponement of a particular interest is merely in

order that a prior interest be enjoyed. So, if the prior interest is determined, there is no reason for the continuation of this postponement, and thus should be accelerated

Test: Whether or not the gift is accelerated is a matter of intention

Re The Esate of Creighton

[Yes Acceleartion]

Discretionary trust of income and capital to kids and grandkids (who get broader discretion). On death of the last kids, the residue is to be divided and paid equally to grandchildren then alive (with gift over to great-grandkids). If no grandkids alive, then residue goes to charity. Kids try to disclaim so the property vest immediately in the grandkids

Court noted that the estate can only be accelerated if there is no contrary intention that the testator did not want the interest to vest in the grandchildren until death of the kids

Court noted that the will is clear in stating the testator’s intention of not giving more residue to kids, but as a responsible parent provided protection for the kids in term of a life estate. If the kids wish to disclaim their interest, then they should be allowed to and thus, the interest should vest immediately in the grandkids.

B. ABATEMENT FOR DEBTS

Definition: Where estate is insufficient to pay debts, gifts must “abate” Abatement occurs in a particular order and is subject to contrary intention in the will

WESA50

If assets are not sufficient to pay off debt

(1) Will-maker can provide for order of abatement (2) Where the estate is insufficient to satisfy the debts and gift, gifts will abate(3) Land charged with payment of debts or pecuniary gifts is primarily liable for the debts/gift(4) Land and personal property must be reduced together(5) Assets are reduced in the following order

(a) Property specifically charged with payment of debt; (b) Intestate assets and residue; (c) General, demonstrative and cash (pecuniary) legacies; (d) Specific legacies; (e) Property over which the will-maker had a general power of appointment

Celantano v Ross

[Pre-WESA]

Illustration of the difference between various types of disposition

Three classes of legacies General: Gift which must be raised out of her general personal estate (i.e.

$100 to X) Specific: Gift of a particular thing or interest forming part of the testator’s

estate (i.e. iPhone 8 to X) Demonstrative: Gift of a specified amount which is directed to be satisfied


primarily out of particular fund ($100 to be raised out of the sale of my Surrey properties

RECTIFICATION AND CURING DEFICIENCIES

A. CURING DEFICIENCIES UNDER SECTION 58

WESA58 Court order

curing deficiencies

(2) Court may cure deficiency if court determines that the document represents (a) the testamentary intentions of a deceased person (b/c) the intention of a deceased person to revoke, alter or revive a will or

testamentary disposition contain in a will or in another document (3) Even if the making, alteration or revival of a will does not comply with formalities(4) If an alteration not made according to formalities makes a word or provision illegible, the court may reinstate the original word if there’s evidence to establish what the original word is

58(1) “record” “Record” includes data that(a) is recorded or stored electronically,(b) can be read by a person, and(c) is capable of reproduction in a visible form

George v Daily

[Testamentary Intentions]

Testator met with his accountant to make changes to his will. His accountant talked to his lawyer. Lawyer suggested that the testator obtain medical proof of his competency to avoid contestation. Testator died before the changes were made and before obtaining medical proof

For a will to be valid, the testator must have intended his words to be legally operative

Testator must be clear of the finality and solemnity of the occasion

“Testamentary intention’s” essential quality is that there must be a deliberate or fixed and final expression of intention

Deceased has to know that this is what he wants to happen to his property on his death and the intention must relate to a disposal of property on death

Hadley Estate (Re)

[Journal Will: Testamentary Intention]

Testator has a will (Will #1). Later, she wrote in her journal something she refers to as her will after a health scare, however, also made a note that she intends to see a lawyer to make this will. She could not officially create this will before her death. Court held against the journal will

Material time = time when document in question was created

Document may acquire a testamentary character by subsequent and sufficient manifestation of the will-maker’s intention

Ordinary rules of admissibility apply for a S58 application

o Evidence must be relevant to a live issue and not be subject to exclusion under any other rule of law or policy to be admissible

o Direct evidence of testamentary intent is admissible

Rectification ConstructionFixing a mistake in a will prior to probate to correct an error

Interpreting a provision in a probated will that is ambiguous either on the face of the will or arising from the administration of the estate

B. RECTIFICATION


Definition: Rectification is fixing a mistake in a will prior to probate to correct an error Under WESA, court can rectify a will at time of probate or at time of construction + can add words to

rectify the will

WESA59(1)

Rectification Court may order a will be rectified if court determines the will fails to carry out the will-maker’s intention because of

(a) an error from an accidental slip or omission(b) a misunderstanding of the will-maker’s instruction, or(c) (c) a failure to carry out the will-maker’s instruction

59(2)

Evidence Extrinsic evidence (inc. evidence of WM’s intent) is admissible

59(3)

Time Limit Application for rectification must be made no later than 180 from when representation grant is issued (with option to apply for leave to make application after deadline)

59(4)

PR Liability If court okays a rectification application 180 days later, and the asset is already distributed by a personal representative. PR not liable if distribution made after 180 days & before notice of rectification application is delivered to the PR.

Clarke v Brothwood [Ambiguity about who made the mistake]

Testator left 1/10 of the residue to charity A, 1/10 to charity B, and 1/20 to each of her 4 godsons. (Disposed of only 40%, what about the remaining 60%?). The question was should 1/20 mean 20% or 1/20? Court held 20%

Court rectified the error despite it being unsure who actually made the error because court said that for the testator to leave 60% undisposed of it would be a bizarre construction of the Act

Marley v Rawlings

[Clerical Error]

Couple had mirror wills and accidently signed each other’s instead of their own. Lawyer candidly admitted to this mistake during his testimony.

The mistake can be characterized as a “clerical error”, which can carry with it a wider meaning: namely a mistake arising out of relatively routine office work

Court recognized that this is not within the narrow meaning of “cleric error” (limited to mistakes involved in copying or writing out a document)

CONSTRUCTION

Concept: Construction at common law is the exercise, after a will has been admitted to probate, of interpreting a will for ambiguity

Interpretation based on language used in the will At construction stage, court could add in words or delete words to the will to give it meaning

A. COMMON LAW & STATUTORY LEGISLATION

(CL) Doctrine of Equivocation: Direct evidence of the testator’s intention is not admissible in construing the meaning of the will except in limited exceptions where the ambiguity relates to the identity of B

“Surrounding circumstances” evidence is admissible to infer the meaning of the words used in the will

WESA4(1) Contrary

Intention(a) Extrinsic evidence of intention, including statements made by the will-maker of intention, is not admissible to aid in the construction of a will unless:

(i) Provision is meaningless, (ii) Provision is ambiguous on its face or in light of other evidence is ambiguous

having regard to surrounding circumstances, or


(iii) Extrinsic evidence is expressly permitted by WESA (i.e. S59)

B. GENERAL PRINCIPLES

Re Theimer Estate

[Construction of “monies”]

Deceased has assets totally $20M (shares in company, GICs, mortgage, real property, CPP Death Benefit, Income Tax Refund, etc.) Deceased’s will include a clause that willed remaining “monies” to his common-law wife. Question was whether “monies” included certain items?

Rules of Construction1. The objective is to ascertain the intention of the will

maker as expressed in his or her will when read as a whole and in light of any admissible extrinsic evidence.

2. Intention to be gathered from the “four corners” of the will as a whole and not solely from the provisions in issue.

3. Must look at the actual words used.4. “Armchair Rule”: court must put itself in the position of

the will maker and from that vantage point construe the will.

Re Lubberts Preferred in Canada: Will is unilateral and plays a different role in our society than a contract subjective exercise

Marley v Rawling

A will should be interpreted in the same way as a contract, subject to the rules allowing introduction of evidence of actual intent objective exercise

Tottrup Technical words, particularly if used by a professional, is likely to be given its technical meaningLaws v Rabbitt[General Construction Principles]

Construction should only be applied if intention cannot be determined from the plain meaning of the words used in the will

That evidence should be weighted only so far is they bear on the intention of the testator Entire process of construction must be informed by the surrounding circumstances

Wilson v Shankoff

[Armchair Rule]

Apply the “armchair approach” to construction, involving looking at the circumstances that existed and which could reasonably be expected to influence the will-maker at the time to determine intention

Start with plain meaning of words: If the words are absolutely clear, then cannot proceed with using surrounding circumstances as there is no need to consider surrounding circumstances

o But where there is an ambiguity, surrounding circumstances can be applied

C. “MISTAKEN” INCLUSION AND OMISSION

Re Davidson

[Mistake of Lots number gifted]

Testator gave Lot #187 to one daughter and #188 to another daughter. But the house on #187 crossed over to #188

Doctrine of falsa demonstration: If there be an adequate and sufficient description with convenient certainty of what was meant to pass, a subsequent erroneous addition will not vitiate it, applies to strike out the non-essential words

Re McEwen Estate

[Unstated Contingency]

Will did not provide for a situation

Presumption against intestacy: The court will do its best to find meaning so that gift does not fall into intestacy subject to finding meaning that is consistent with the will

Presumption cannot go beyond and give effect beyond what the meaning of the words can bear and what was intended

D. PROPERTY

WESA41

Property that can be Gifted

(1) Person can make gift of property they are entitled to at the time of his death(2) (Can contract out of) “Property” refers to shit the will-maker owns immediately before the death of the will-maker


(3) Gift will(a) take effect according to its terms, and(b) (b) give the recipient every legal or equitable interest in the property that the will-

maker can give44

Residue of the Estate

Shit that remains will be disposed of by (a) distribution to people entitled as intestate heirs (b) If no one is entitled escheat to the Crown

45

Divided Land

Presumption that a gift with a subdivision to 2 or more beneficiaries are TiC not JT

47

Property encumbered by SI

Beneficiary who receives a gift of real or personal property over which the WM has an outstanding loan must pay the debt

Loan follows the gift, but only if the loan is connected to the gifted property

Re Meier

[nemo dat]

Testator died leaving his farmland to his brother, but the farmland was actually owned by a company that testator was the sole shareholder of. (Didn’t leave the shares to his brother)

There was evidence that the testator treated the corporation’s property as his own but it is well established that the corporation’s assets is its own asset, not the SH’s

Court held nemo dat gift fails Ireland v Retallack[Australian Case]

Testator owned 99% of the shares of a corporation and daughter owned 1%. Testator tried to leave corporation’s property to his daughter

The testator controlled the company and by reason of that control, the executor is in a position to give effect to the gift

E. PEOPLE

1. CHILDREN

Re Simpson Estate

[Intention]

Testator left gifts to his 6 children, including Robert (who was not his natural or adopted kid). Testator treated Robert as his son in life and calls him that in his will as well

Court, considering the whole of the circumstances surrounding the Simpson family, held that Robert is treated as a son and entitled to his share

2. HEIR, NEXT OF KIN, ISSUE

WESA42(2) Meaning of

particular words

Subject to a contrary intention, a gift of property in a will to a person described as “heir” or “next of kin” takes effect as if it had been made to the intestate heir, based on the rules of intestacy

42(3) “die without issue”

Deemed to refer to no descendants or no descendants at the time of the death of the person and not to a complete absence of descendants of that person

42(4) Per stirpes gift A gift to a person’s “issue” are to be distributed per stirpes (not per capita)

3. “PER STIRPES”

Re Karkalatos Estate[Per Stripes]

Testator had 2 daughter, but A is dead. Question is where does per stirpes apply. If applicable at the daughter level, then A’s share goes to her daughter. If applicable at the grandchildren level, then A’s share is divided between the 4 grandchildren surviving (A’s 1 daughter, and B’s 3 children)

Court held that the division occurs at the daughter level, so A’s daughter gets half (the half her dead mom receives from dead grandma)


F. CLASS GIFT

1. DEFINITION

Definition: Gift to a class of persons included under a general description and bearing a certain relation to the testator or another person

Note, If class gift, if one or more person in the class died in testator’s lifetime, the survivors in the class takes the gift equally amongst them (i.e. per capita distribution)

Note, Gift does not lapse as long as there is one member of class alive

Milthorp

[Class Gift]

Will clause: “residue to my daughter X and my son Y and to my husband’s children, ABCDE and F, in equal shares per stirpes” D predeceased testatrix and had no children

Naming of the individuals suggested this was not a class gift

2. CLASS CLOSING

General Rule: Members of the class are determined prima facie, at will-maker’s death. Exception to Rule: Where there is a conditional gift to a class with a legacy that is divisible at the date of

death of a person, then the class is ascertained when the first member in that class becomes entitled to payment of his share

Class Closing Rules: Class closes at the earliest opportunity, namely upon the entitlement of a member of the class to call on the class

Reasoning: This is because when the first member becomes entitled to take his share, he can call for the class to be closed; meaning that only the people that can take at that time are entitled

Note: Rules are subject to a contrary intention in the document creating gift Result: When first member in class becomes entitled to his share and subsequent members coming into

existence thereafter are excluded from taking a share

In Re Bleckley[Class closing]

Son of testator had 2 children – 1 dead, granddaughter who reaches 21 and seeks payment of funds. Wife divorced from son, but still alive and could have more children (but none born before granddaughter reaches 21).

Class closes as soon as the first person becomes entitled to take

Four Scenarios: (Details next page)1. Vested Gift, No Prior Interest2. Vested Gift, Prior Interest3. Contingent Gift, No Prior Interest4. Contingent Gift, Prior Interest

FOUR SCENARIOS

Vested Gift, No Prior Interest

“To all of the children of A,”(a) At time of testator’s death, A is alive and has a kid. The kid may call for possession class

close to the exclusion of any future A kids. a. To exclude, say something like “to kids of A whether born before or after my death”

(b) At death of testator, A is alive but has no kids A’s future born kids will probably takeVested “To B for life, remainder to the children of A”


Gift, Prior Interest

(Earliest time class close is the date of termination of B’s life estate)(a) If kid alive at testator’s death, class will consist of kid or kids born during B’s life estate

a. If any kid dies, they die vested, their estate will take(b) If no kid alive at testator’s death class will consist of kids born during life-estate(c) If no kid alive at testator’s death + no kids born during B’s life estate A’s kid born after

death of B’s life estate will probably take

Contingent Gift, No Prior Interest

“To the children of A if they reach the age of 21”(a) At time of testator’s death, A has 1 or more kids aged 21+ but no kids under class close (b) At time of testator’s death, A has 1 or + kids aged 21+ + kids under 21 class close in

favor of those kidsa. Kids 21+ get it immediatelyb. Kids under 21+ if they live till 21+, they get; if they don’t, their share is shared

amongst the other kids(c) Testator’s death, all kids under 21 class remain open until a kid reach 21

a. Any kid born then is eligible to be a memberb. As they reach 21, they get their share

(d) If no kid at time of testator’s death class remain open until kid born reach 21 then class close in favor of all kids then alive, provided they reach 21

(e) If no kid at death, A then has a kid who reach 21 and none other, kid takes to the exclusion of any subsequently born kid

Contingent Gift, Prior Interest

“To B for life, remainder to those children of A who reach the age of 21”(Earliest date for closing = date of the termination of the life estate)

(a) If kid of A reaches 21 before termination of life estate, class closes at termination of estate in favor of all kids (a) alive at testator’s death + born during life estate, and (b) reached or will reach 21

a. If a kid reach 21 but dies before termination of life estate vested(b) If kids alive at the termination, but none reached 21 class close when first kid reach 21

a. Class close in favor of all kids who (a) alive at death of testator or born after but before the first kid reached 21, and (b) reach 21

(c) A may have no kid at date of termination of life estate class close when any child born to A reach 21

TRANSFERS OUTSIDE OF A WILL

Reasons to Avoid the Will: avoid probate, probate fees, variation and publicityHow it Works: Asset disposed of on death without passing to the PR

Common techniques: inter vivos trusts, gifts and joint tenancies Note: Statutes provide for insurance proceeds and for designation of beneficiaries under pensions do

not pass via will


Ways to Do it: (1) Gift; (2) Joint Tenancy; (3) Trust; (4) Insurance Designation; (5) Benefit Plan Designation

A. GIFT

Concept: Most simple way of avoiding the will, but the key is to not give it away too early Triggers tax on capital gains because transfer is “disposition”

How to Make a Gift(1) Intention to gift

Ideally document with Deed of Gifto Former written document that shows intention to make the gift *done under seal

Can be proven other ways(2) Delivery of the gift

Nature of delivery depends on the kind of asset it iso Land: proper set of transfer form and they can take it to register it at the LTOo Shares: Done through a book based transfero Cash: Just hand it overo Look at kind of gift and what steps can be taken to hand the asset overo You can do a declaration of trust as a form of delivery: If you just declare that you’re holding it for

someone Can achieve with declaration of trust

(3) AcceptanceNote: Where there is a lack of intention presumptions of advancement/resulting trust will apply

B. JOINT TENANCIES

Definition: Joint Tenants share equal ownership of the property and have the equal undivided right to keep or dispose of the property

Must have unity of title

On death of the first JT, survivor becomes owner by “right of survivorship” Contrast with TiC: Each retain their own share on death For JT: One die, the dead one’s interest goes to the living JT

Right of Survivorship in Succession Law: Equity presumes bargains, not gifts Presumption of advancement: in certain relationships (spouses) the court will assume that a gratuitous

transfer into joint tenancy creates a true joint tenancy: a gift of a present interest & right of survivorship. Presumption of resulting trust: absent a special relationship giving rise to a presumption of

advancement, the presumption is that a transfer into joint tenancy is not a gift and there is no right of survivorship that passes to the surviving joint tenant. The gift falls back into the Deceased’s estate on death.

Pecore [Advancement & RT]

Paula’s ex-husband is suing Paula for the assets held in a joint account between Paula and her father upon her father’s death. Paula had a good relationship with her father. Her

(Rebuttal, BoP) Resulting Trust (RT) arise when title to property is in one party’s name, but that party is under an obligation to return it to the original party because he is a fiduciary or gave no value for the property

Transfer made for no consideration onus on transferee to demonstrate the gift was intended

(Rebuttal, BoP) Advancement is a gift during the transferor’s lifetime to a transferee who, by marriage or parent-child relationship, is financially dependent on the transferor

No presumption between parent–adult child (无关是否自立)


father placed his assets in a joint ownership for estate planning reasons

Special Circ.: In situations where A opens an account in the name of A & B, and only A can withdraw during A’s lifetime, but on death of A, B takes the remainder not a testamentary disposition, is a inter vivos giftEvidence admissible:

(1) Acts or statements of either party, before or after the transfer(2) Fact that the transferor granted a PoA to the transferee(3) Fact that the transferor had continue to control the property after

the transfer(4) Extent of transferor paying capital gains taxes on the transfer(5) (5) Bank documents signed by the parties when a joint account is

open are admissible Madsen Estate v Saylor[opposite result to Pecore]

Similar facts to Pecore

Court noted that the daughter was dodgy af and held that the transfer triggered a presumption of resulting trust, but daughter did not disprove it

Court admitted evidence of the bank document: documents do not contain any express reference to beneficial entitlement to the assets of the accounts

C. TRUSTS

Inter Vivos Trust Roll-over Trust Because assets transferred to a trust are

gifted inter vivos, they bypass the estate 3 Certainties to be Valid:

o Intentiono Objects (beneficiaries or purpose)o Subject matter (trust property)

Gift of trust property must be effective to trustee

Can have tax consequences as disposition Delivery of a gift can be done through a

declaration of trust or actual transfer of asset

Spousal Trusts: For benefit of the spouse of the settlor (All income to spouse and only spouse benefits from capital)Alter Ego Trusts: Settlor is over 65 + All income to settlor + Only settlor benefits from capital during lifetime

o Rollover goes into the trust o The settlor is the only one that has access to the

assets during their lifetimeJoint Partner Trusts (as with alter ego but for combined benefit of settlor and spouse)

o It’s for the joint lifetime of the settlor and spouse o Settlor has to be over 65o Settlor & spouse gets all income and has access to

the funds

Mordo v Nitting

[Everything Bagel]

Eida has two kids, Viviane and Alex. Eida created trusts so that certain property will be transferred outside her estate and thus cannot be subjected to any variation claims Alex might make. Alex being the asshole kid he is, challenges these transfers. He failed (lol!).

Challenge #1: Sham Not a sham b/c if at time of execution, the settlor genuinely intends

the documents to take effect according to its terms no sham Challenge #2: Resulting Trust

Not a RT because Eida had ample evidence to indicate intention to create a trust

Challenge #3: Trustee was actually an agent Lawyer was trustee (bound by directions under the Trust Indenture,

but not beyond that)Challenge #4: Public Policy

The legislature does not prevent the avoidance of claims under the Wills Variation Act

Challenge #5: Testamentary disposition Whether a trust is inter vivos or testamentary depends on the

intention of the settlor o If the settlor intends that a trust not take effect until after his

death and it is dependent upon his death for its vigour and effect testamentary

o If document creates a trust that takes immediate effect, but enjoyment is delayed, it is vested and not dependent upon


death for its vigour and effect not testamentary Motive is of no relevance to whether trust properly constituted

D. INSURANCE DESIGNATION

Concept: Life insurance and benefit plans permit the designation of beneficiaries on the insure or plan holder’s death

Note : Proceeds received tax free

INSURANCE ACT1 “declaration” Instrument signed by insured

With respect to which an endorsement is made on the policy of the insurance, That identifies the contract or Describes the insurance or insurance fund or a part of the insurance or insurance

fund1 “insured” (a) For group insurance: the group insured, and

(b) In all other cases, the person who makes a contract with an insurer 59

Designation Insured can name beneficiaries

60

Irrevocable Designation

(1) Irrevocable designations can be made except in a will, but must be filed with insurer, and can be changed with the beneficiary’s consent (2) If it is not filed according to (1), it would be as if it was not meant to be irrevocable

61

Designation in a Will

(1) Declaration can be a will (even an invalid one)(2) Designation in will is of no effect against a later designation (made after the will) (3) If will containing designation is revoked designation is revoked (4) If instrument containing designation is revoked designation is revoked

62

Trustee for Beneficiary

Insured may appoint a trustee for the beneficiary (through contract/declaration) to hold, and can mimic the terms of a will to inc. alternative gifts

63

Predeceased or Disclaiming Beneficiary

(1) In situations of lapse in the insurance context If no express alternative beneficiary, then:

o To surviving beneficiary oro If more than one alive to the surviving beneficiaries equallyo If no more alive to the personal representative

(2) Default: If 2 or more beneficiaries alive, presumed to share equally 65

Free from seizure

(1) If beneficiary named, insurance passes outside the will and is free from creditors(2) Where the beneficiary is a spouse, child, grandchild or parent of the insured, then insurance is exempt from seizure during lifetime

E. BENEFIT PLAN DESIGANTION

Includes: Pension, welfare fund, profit sharing, life annuity, RRSPs, RRIPs, TFSAs All of these have the ability to name beneficiaries RESP: Not included because they are part of the estate of the original giftor

1. THE LEGISALTION

WESA1 “benefit

plan”(a) any one or more of the following for the benefit of employees:

(i) pension or retirement plan(ii) welfare fund or profit-sharing fund(iii) trust, scheme, contract or arrangement

(b) fund, trust, scheme, contract or arrangement for payment of an annuity for life or term(c) retirement savings plan or retirement income fund


(d) fund, trust, scheme, contract or arrangement described in regulations under this Act(e) TFSA

85(1) Designated Beneficiaries

A participant may (a) designate another person for whose advantage the benefit is payable, and (b) unless designation is irrevocable, alter or revoke the designation

85(2) Effectiveness

A designation, alteration or revocation (a) is only effective if it is

(i) in writing(ii) not altering or revoking a previous irrevocable designation(iii) signed

(b) may be made in a will, but if it is,(i) the designation is only effective if it relates expressly to a benefit plan, &(ii) Division 3 applies

(c) is subjected to S89 [when designations may not be changed]o Attorney may make a designation only if expressly authorized by the

court and it is not made by will86 Several B If 2 or more designated beneficiary + no specific provision equal share designation87 Irrevocable

DesignationPermits irrevocable designations

Must be filed with plan administrator Cannot be in a will

88 Effect of Irrevocable Designation

(1) Cannot alter or revoke without B’s consent(2) Benefit subject to irrevocable designation

(a) not subject to control of the participant or P’s creditors, and(b) does not form part of P’s estate

89 Can’t change Can’t change designation unless terms allow it once payment starts91 Dead

designatedIf a designated beneficiary dies before the participant share is payable

(a) to the surviving designated B,(b) If more than one surviving B in equal shares(c) (c) If no surviving designated beneficiary P’s personal representative

92 Trustee Permits appointment of trustee Cannot use trustee if you want tax deferral of benefiting spouse Sometimes plan administrator does not easily accommodate

95 Not part of estate

Benefit plans can name beneficiaries and so passes outside the estate and is free from creditors

96 Alteration/Revocation

Designation in a will may be altered or revoked by a later designation that is not in the will

97 Designation in Will

(1) Revocation in a will of a designated revokes a designation that is not in a will only if revocation relates to the designation and designation is not irrevocable (2) Revocation of a will revokes a designation in the will(3) Revocation of a designation does not revive an earlier designation

98(1) Invalid will Designation or revocation is not invalid merely because the instrument is invalid99 Revival of

WillRevival of a will by codicil does not revive a revoked designation in a will unless the codicil expressly provides for revival

2. TESTAMENTARY NATURE – GENERAL

Note: Designation under a retirement plan was testamentary in nature (MacInnes v MacInnes) Re Bottcher BC case of the same idea

Note: Designation while not a will, is a testamentary instrument (WESA)

National Trust v Robertshaw[Designation

Doctor had an RRSP designation, designated his first of 3 ex-wives. Doctor also had a will that did not specifically

Court held that the full ‘vigour and effect’ of the designation of beneficiary contained in the RRSP is not entirely dependent on the death of the doctor


not Testamentary]

name the RRSP, children designated as beneficiaries under that will

inter vivos transfer of a contingent interest not testamentary

3. TESTAMENTARY NATURE – SPECIFIC ISSUES

The making and revocation of designations: WESA provides that designation may be made and revoked not only using wills but also non-will formalities

Capacity: Re Rogers: wills test for capacity applied where an insure changed preferred beneficiaries under an

insurance policy designation not testamentary so burden of proof rested on person challenging the validity of the change

Tamblyn v Leach: case involving the change of a beneficiary under a statutory pension plan designations of beneficiary could be “compare to the testamentary disposition”

Undue Influence: Flack v Rossi: Pension designations = testamentary, burden of providing undue influence evidence fell on person asserting UI

4. FAILURE TO REVOKE

WESA S56 Can

contract out of Default

DOES NOT APPLY TO BENEFIT PLANS(1) Allows for contracting out of the default(2) Default: If spouses separate, any gift under a will is revoked and gift is distributed as if spouse died before will-maker(3) This section is not affected by a subsequent reconciliation (gift is still revoked)

Roberts v Martindale[Life insurance policy; separation agreement]

Deceased and ex-husband signed an agreement that provided that they relinquish all rights in each other’s estates. Deceased died leaving an insurance policy in which ex-husband was the designated beneficiary

Equity shall not be an instrument of fraud and that constructive trusts have been imposed in many cases where the D has done nothing fraudulent but a constructive trust is imposed whenever justice and good conscience requires it (finding on ‘wrongful conduct’ of a party and not enrichment)

Husband has no claim b/c separation agreement = relinquish all claims

Wilson v Wysoski[Pension plan; No agreement]

A and B were in a common-law relationship that ended. A had a pension plan that designated B as the beneficiary. B reminded A on 3 occasions to change the designations. A made some changes but did not affect the changes. When B died, a lump sum benefit was paid to B

To provide unjust enrichment: estate must prove (a) an enrichment to B, (b) a corresponding deprivation to A’s estate and (c) absence of juristic reason for the enrichment

(c)(i) prove that there is no juristic reason from an established category existing to deny recovery

(c)(ii) D may rebut the prima facie case by showing there’s another reason to deny recovery

Ladney v Wolfson

[ 4 conditions for “good conscience constructive trust” ] 1. D must have been under an equitable obligation re: the activities giving rise to the assets

in his hands2. The assets must be shown to have resulting from deemed to actual agency activity of D

in breach of his equitable obligation3. P must show a legitimate reason for seeking a proprietary remedy, either personal or

related to the need to ensure that others like D remain faithful to their duties; and4. There must be no factors which would render the imposition of a constitutive trust unjust

in all circumstances of the case


CLAIMS AGAINST THE ESTATE

PART 1: WILLS VARIATION

A. THE LEGISLATION

Section 60 this is a 100% discretionary remedy, and the court has an enormous amount of discretion to determine what is adequate, just and equitable

WESA60 Maintenance

from EstateIf the will does not (in the court’s opinion) make adequate provisions for the proper maintenance and support of the WM’s spouse or children, then the court can order a provision that it thinks adequate, just and equitable to be made out

61 Time Limit (a) Statutory limitation period of 180 days(b) Must serve the executor within 30 days of the 180 days(c) Must serve PGT if there’s a minor kid or mentally incapacitated spouse

62 Evidence Court can accept evidence that it thinks is proper but must consider all circumstances from which an inference may reasonably be drawn when assigning a weight to the evidence rules of evidence relaxed, court can look at anything

63(b) Orders subject to conditions

The court may refuse to make an order in favour of a person whose character or conduct disentitled the person to the benefit of an order in the court’s opinion

65 Payment If the court varies a will there is an equal burden on all beneficiaries to bare the burden of the variation

66 Suspend Administration

The court may suspend the administration of the WM’s estate or exempt any part of the WM’s estate from the effect of an order under s60

B. WHOM MAY APPLY

Spouse – married, common law, same or opposite sexChild – biological or adopted, minor or adult, financially dependent or independent (excluding step-child, McCrea v Barrett)

C. THE COURT’S DISCRETION

1. General Principles and Claims by Spouses

Marriage agreements and the waiver of wills variation rightso A waiver of any wills variation rights is not going to be a bar to bringing the claim (it’s a factor)o There’s a considerable amount of discretion for the court to overlook a marriage agreement

Family Law Act provides family property division rights to both married spouses and spouses living in a marriage-like relationship (“common law”)

Tataryn [“Just, Adequate & Proper” Test]

Husband and eldest son (John) did not have a good relationship. Husband established a life estate in the house and left everything to the second son. The wife and John challenged

Two-part test guided by legal & moral obligations Legal Ob.: What the law imposes on a person during his life

Legal obligation to support his spouse and minor children o Spouse: consider rights immediately prior to death

if parties separated (FLA, Divorce Act)o Dependent Child: also has legal obligationso Independent Child: Could have legal claim

grounded in unjust enrichment Clear and unequivocal social expectation

Moral Ob.: Society’s reasonable expectation of what a judicious person would do under contemporary societal standards

Where the size of the estate permits + absent negating


circumstances, some provisions should be made for adult independent children (every claim should be met)

Moral obligation may increase the award in favour of the claimant beyond the amount of the legal obligation or may be the foundation of the award in favour of the claimant where no legal obligation is owed

Scheme of Priority: Legal obligations take precedence over moral obligations, therefore claimants owed a legal obligation take precedence over claimants owed only a moral obligation

o Spouses are owed legal and moral obligations (priority)o Adult children are generally owed only moral

obligations, unless they assist with the amassing of the parent’s wealth

Limitations of Discretion: If the testator choose an option within the range of just/equitable/adequate, the will should not be disturbed (legislation can’t rewrite)

Bridger v Bridger Estate[If you’re acting for the spouse]

Deceased left his estate to kid from previous marriage not wife (had asset of her own). Wife also did not leave anything to husband. All party does not have financial need. Mrs. Took care of Mr. when he was sick (38yrs of marriage)

Mrs. has a moral claim unrecognized by Mr.’s will: she took care of him during is sick years and she was the one that initiated the push to acquire properties making her entitled to an amount in addition to the legal obligation

Possibility that the money given to Mrs. will go to Mrs.’ kids are irrelevant

Legal obligation may be “inadequate provision” even in the absence of financial need (legal obligation is the floor not the ceiling)

Saugestad [If you’re acting for the kids]

Deceased left the bulk of his estate to children from his first marriage. Made adequate provisions for his wife. Bulk of the estate was built up during his marriage to his first wife

Assessment of Legal obligation to spouse Reapportionment of assets under the FRA due to testator’s

ownership prior to the marriage and the length of marriage Testator left her enough for her to be comfy

Exclusion of non-family assets from calculation Moral obligation owed to sons ranked ahead of those to the spouse

First wife had contributed to the husband’s estate giving rise to a strong moral claim

Sons had legitimate expectation that they would receive bulk of estate

The testator recognized his moral obligation to his children despite having their relationship be rough at times

2. Adult Children

Waldman v Blumes[Obligation Ranking]

Young 2nd wife, old husband. Husband dies leaving adult kids from 1st wife, 2nd wife, dependent kids from 2nd wife. Husband left everything to 2nd wife. Adult kids brings variation claim.

Analysis: Wife’s legal obligation – Agreement to give wife all assets for

having children and not working full-time Kid’s legal obligation – 2nd wife’s children were dependents Wife’s moral obligation – Cared for husband at home before death Kids’ moral obligation – to the 2nd wife, and kids from all marriages

(dependents > independents)


Clucas v Clucas[Factors for Adult Child Claims]

Considerations that inform the existence and the strength of moral duty to independent children: 1. Disability of the adult child2. Assured or implied expectation on part of the adult child arising from abundance of estate or

treatment during lifetime3. Present financial circumstances of the child4. Probable future difficulties of the child5. Size of the estate6. Other legitimate claims

McBride v Voth[Factors for Adult Child Claims]

Deceased left a life estate to his eldest child, and residue to be divided amongst three children. Margot intends to live the house indefinitely, effectively disinheriting the siblings.

Considerations that inform the existence and the strength of a testator’s moral duty to independent adult children :

1. Contribution and Expectationa. Contribution in the accumulation of assets moral

obligation; might also bring about an unjust enrichment legal obligation

2. Misconduct/Poor Charactera. Conduct must be relatively sever to justify disinheritance b. A child who is a disappointment overall, is an “incompetent

weakling”, or is unsuccessful in multiple business ventures and has a difficult time “fighting the battles of life” is not considered to be sufficiently defective

3. Estrangement/Neglecta. Inquiry into the reason for estrangement and whose fault is

it; might actually have a moral duty to rectify childhood neglect

4. Gifts and Benefits made by the Testator during Lifetime5. Unequal Treatment of Children

a. Absent relevant reason for unequal distribution, there is a reasonable expectation that adult children will share equally court will not disturb an equal split

6. Testator’s Reasons for Disinheritance/Subordinate Benefit a. If you disinherit an adult child and you have reasons to do

so if those reasons are valid and rational, then the court will not look further

i. Valid – correct; Rational = rationally connected to the act of disinheritance

ii. If testator says something in his reason that is true and connected, court can’t look further

3. Minor Children

Healthfield v St. Jacques[Minor children variation]

Deceased left all of the residue to his wife (none to minor children). Decease and wife separated prior to death, advised to change his will but did not. On death, ex-wife received $800k in insurance money and the residue. PGT challenged on behalf of the minor children. Will varied so that children receive 100%.

Court found that the deceased did not fulfil his moral and legal obligation to his minor children by leaving the estate to his former spouse (whom he has no legal or moral duty to nor do they have an agreement as to how she would subsequently provide for the children)

Kids had a strong argument + ex-wife did not have standing (no legal nor moral obligation)

D. PROPERTY AVALIABLE TO SATISFY A CLAIM – FRADULENT CONVEYANCE


You can’t be a “creditor or other” if you don’t have a claim during the testator’s life time because a fraudulent conveyance is a conveyance to defeat the lawful claim of another

o Adult child can only ever have a future claim because they don’t have a claim against their parent’s estate for their lifetime

o But the issue was whether a spouse can be a ”creditor or other” because they always have an uncrystallised family law claim against the other person

Mawdsley v Meshen [Fraudulent Conveyance]

Will maker made an alter ego trust and transferred her assets to the trust for the benefit of her children after her death. Will-maker also put assets into joint tenancy and made inter vivos gifts. No provision was made for her common law spouse; however, he was present at the meetings she had with lawyers. Husband sued for fraudulent conveyance after her death. Sought a variation of the Will.

Court found that Mawdsley was well aware of Meshen’s intention to benefit her children + brother only

Effect is not conclusive, ITC there was no intention to defeat Mr. Mawdsley’s claim

Nothing in the FCA goes as far to suggest that “creditors and others” includes a person who has no claim during the testator’s lifetime

Spouses and adult children cannot use the Fraudulent Conveyance Act to void transfer out of the estate and move assets back into the estate

PART 2: PUBLIC POLICY

McCorkill v McCorkill Estate[Left to racist org.]

Testator left his estate to the National Alliance (bad evil group). NA has been found in contravention of the criminal code, the charter of rights, provincial human rights legislation as well as international conventions laws

Court found the purposes of NA and activities and communications which it undertakes to promote its purposes are both illegal in Canada and contrary to the public policy (evidenced by foundational documents) residual bequeath = void

Spence v BMO Trust Company [Disinheriting on Racist Basis]

Testator left disinherited one daughter because her baby was white (but on the face of the will did not appear discriminatory)

Three types of unworthy heirs: 1. B who killed the testator2. B who are terrorist groups3. B whose self-declared reason for existence

contradicts public policy Upheld disposition as it was a private bequest: protected by testamentary freedom; even though the bequest is unsavory, it does not override testamentary freedom

Carrying out the will does not require discriminatory conduct

No repugnant condition on the disposition = no reason to void the gift for public policy

ESTATE ADMINISTRATION: THE PERSONAL REPRESENTATIVE

A. PERSONAL REPRESENTATIVE’S DUTIES

WESA142(1) Authority The executor or administrator will have the same authority as the deceased, subject to

(a) any contrary intention in the will (b) any statutory provisions

142(2) Duties Personal representative must exercise authority to (a) administer and distribute the estate (b) account to beneficiaries, creditors, etc.


(c) perform any other duties imposed by the will or by law

Duties of a Personal RepresentativeEnsuring appropriate funeral arrangements are made // Taking possession/control of assets and

safeguarding // Paying debts and liabilities (creditors get paid first) // Notifying beneficiaries // Acting personally in respect of mgmt and administration (unless where delegation is approved) //

Investing estate funds in an authorized manner // Act impartially – can’t play favourites // Bringing and maintaining actions on behalf of the estate // Keeping proper accounts // Distributing assets to beneficiaries in accordance with the will

Level of skill and prudence required: Individuals “reasonable person of business”; Professional “standard of that profession”

Other Notes Where there is a will, authority flows from the will itself, not probate (proof you got the last valid will) PRs owes a fiduciary duty to beneficiaries to act in their best interests

o Binding regardless of whether there is a will or noto So, personal representatives are not allowed to act in a self-dealing deal or conflict of interesto Fiduciary duty is applicable as soon as an individual picks up the duty of an executor

Renunciation and Intermeddling A named executor may choose not to act

o If the named executor is going to renounce he must take care not to intermeddleo If intermeddle must be removed or resign, can’t renounce

A renunciation must be: o Unconditionalo In the form required by the Rules of Court (Part 25)o Witnessedo Filed with the Courto ** May be revocable in limited circumstances: Court has to let you out of ito ** Executor can reserve their right if there’s multiple the reserved executor will take the back

seat and one of the other executor will start probate first If the backburner executor is needed they can step in, if not, sit back and relax bruh

B. PRELIMINARY MATTERS

Step 0: Handle the funeral and disposition of remains

Step 1: Read the damn thing

Check the will for:1. Validity issues2. Obligations3. Beneficiaries: Who are they?4. Partial intestacy: Did all the assets get passed via a will?5. Formality issue: Execution, attestation, identify of witness6. Is curative application (S58) or rectification application necessary (S59)?7. Look at the executor’s remuneration provision is it legit?8. Is the will the last will?

a. Obtain a wills notice search if unsure // b. Are any documents incorporated by reference? // c. Are all amendments made validly? // d. Are there any other “wills” that may be found valid? // e. Are there multiple wills?

Step 2: Identify assets and liabilities


(A) Identify: Consider whether assets in deceased’s name were owned beneficially by deceased and whether now in estate (drill down regarding asset ownership)

If there a declaration of trust? Is there a joint tenancy? Is there a beneficiary designation?

(B) Valuation: Valuation is important for the following purposes: Probate Income tax Solvency evaluation: executor need to know value to determine if they are administering it for creditors

or beneficiaries Sale: Executor needs to know if they’re getting a reasonable return Distribution of asset for the beneficiaries ** Note, can file for probate with the value to be determined ** Note, some assets are easier to value then others (i.e. shares in a closely held corp is hard to value)

Step 3: Mom, do we have to get a probate or letter of administration?

(a) No will letter of administration required(b) Will probate is only needed where assets require it

Some assets (i.e. private company shares) do not require probate

Other reasons to seek probate: Will’s validity Variation limitation period: 180 days from the grant of probate (limitation doesn’t start running until

grant, so if no application, there’ll always be a valid limitation)

C. OBTAINING THE GRANT

Giving Notice

Supreme Court Civil Rules, Rule 25-2(1): 21 days notice prior to filing (“delivered”) Required form of notice must be mailed or delivered to:

o Other named executors with prior or equal righto Beneficiaries

Not just the major beneficiary, but all of the beneficiary o Intestate heirso Where intestacy, creditors whose claim + $10,000

Where there is a will a copy of the whole will must be included Failure to properly give notice can invalidate a grant

o They don’t have to have received it, you just need to send ito But you need to make sure that you do your due diligence to send it

Supreme Court Civil Rules, Rule 25-2(8)-(11): Where notice is given to an infant or incapacitated person notice must also be given to the PGT in the proper form

Required Documents

Submission for estate grant Affidavit of Applicant Affidavit of Assets and Liabilities Affidavit of Notice Wills Notice Search Certified cheque or bank draft for probate fees

** Further affidavit evidence is necessary where unusual circumstancesProbate Fees

Must pay fee to get grant of probate (or letter of admin) Fee payable for estate of resident of BC on all asset situated in BC Fee: $200 + $6 per thousand between $25,000 and $50,000 and $14 per thousand over

$50,000 Access to assets in order to pay fees may be limited methods to obtain fee can be (1)


seek payment form bank & (2) borrow funds

D. ADMINISTERING THE ESTATE

Safe Guarding Assets Adequate insurance of assets Maintenance of real property Interim mgmt of deceased’s business until sold or

disposed of Winding up and monitor digital assets Monitor and supervise investments

Tax Filing and Clearance Must file T1 for terminal year & pay from estate

unpaid taxes (from when you’re alive to when you’re not)

Must file any returns for previous year not yet filed (even in death you may not escape tax)

Before distribution to beneficiaries, a clearance certificate must be obtained

o This is the last chance for the CRA to check the deceased, it’ll protect the executor (not estate)

Confirm whether liable for tax in any other jurisdiction

Compromising and Resolving Claims Where are outstanding claims against the deceased

o Obtain consent of adult, capacitated beneficiaries to any compromise or get the beneficiaries to agree to the compromise

o Making of compromise is subject to approval upon passing of accounts Probate actions cannot be compromised without leave of court (you need everyone to consent + court to

be like sure ok man) Variation claims cannot be dealt with by consent order as relief is a matter of the court’s discretion

E. BENEFICIARIES

Even Hand Principles Keeping the Beneficiaries Informed Infant Beneficiaries

Basic principle : A personal representative must act fairly between beneficiaries

Two ways in which must be “even-handed”

o As between beneficiaries with similar entitlement (2 people sharing in residue)

Informed beneficiaries are often happier beneficiaries

Regular updates help manage expectations

Executors still need to be skillful about what they tell the beneficiaries

Ultimate informational tool is accounts S99 of the Trustee Act

If will makes an outright gift to a minor with no trust, then funds are payable to PGT (not guardian) who will hold it until the minor turns 19

Minors cannot approve accounts (but guardians now can with a court order)


Dealing with Creditors Duty to ensure all debts and liabilities paid

before distribution to be beneficiary o Can be personally liable for shortfall if

distribute before paying creditors To protect the executor from liability for

shortfall: o Advertise for creditors protects

executor (not estate assets) from unknown creditor claims (WESA S154)

Must assess validity of each claim to make sure that it’s still valid executor may be personally liable for debts they pay that aren’t necessary to be paid

o Check for limitationo Where necessary, require proof of

claims

As between beneficiaries with differing interests (LT & remainderman)

F. WRAPPING IT UP

Compensation Will may dictate measure of compensation (fixed amount, hourly rate, etc.)

o In absence of provision in will, Trustee Act governs (cannot pre-take): How you set the fees : When fees cannot be agreed upon by beneficiaries court will consider a number of

factors: Magnitude of trust // Care and responsibility // Time spent // Skill and ability // Success (Most estate will fall between 2-4%)

Professional Services :o There must be a charging clause for the professional service providedo Where professional does administration work, cannot typically recover personal representative

fee and costs to pay professional

Accounting Common law and Trustee Act impose obligation to account A specific form of accounts is required as set out in the Supreme Court Rules (Not a balance sheet or FS) Where accounts are simple, and the beneficiary is a minor or disabled (cannot consent) there can be a

summary passing before the court with the consent of the guardian

TRUSTEE ACT99 Passing

of Accounts

Requires passing within 2 years and then at direction of court unless all beneficiaries agree (3) If executor fails to do so, they may be required to attend a show cause hearing on

why the account has not been passed

Release Once have agreement to form of accounts, executor should seek release from adult beneficiaries

o Release from liability with respect to administration and any specific issues that may have ariseno Where distribution is made prior to final payment of creditors or tax may include indemnityo Where interim distribution, may be conditional upon receipt of holdback

Where release cannot be obtained, may seek discharge under WESA S157

G. TAX IMPACT ON ESTATES

“Disposition”

Definition: Transaction entitling a taxpayer to proceeds (Income Tax Act, S248) Proceeds and disposition both can be real or deemed Includes other types of transactions including transfers to trusts

o Dispositions can also be transferred to Trust

Consequences of a Disposition

Disposition of capital property triggers capital gain or loss that is gains measured from “cost base” 50% of gains include in income and is taxable Losses can be used to off-set gains

Some events that trigger deeming provisions can also trigger greater inclusion into the taxable amounts (i.e. RRSP)

Gifts Gifts are deemed to have received proceeds equal to fair market value Recipient gets FMV as cost base from which future gains are calculate

Trusts(subset of gifting)

Transfer to a trust is included in definition of disposition Bare trust as agency is not included in disposition: when a person transfers to another just

for them to hold it for them (not a disposition) Estate Disposition

On death there is a deemed disposition For joint tenancies, there is a disposition of deceased’s equal portion

Special Properties

RRSP and RRIP: nasty on death in terms of tax because treated as income in the last year TFSA: tax free on death, also note spousal rollover can save your ass (keep remarrying )


Shares of private corporation: can get taxed twice because might need to restructure, nasty shit for death

Eliminating or Reducing Tax

(1) Deferral: Spousal rollovers to individual or trust

o Defer tax until death of survivoro Benefit: Avoid double probate

Certain trusts are created with rollovers (alter ego, joint partner, self-benefit)o Alter ego trust : All income to settlor and only settlor receives capital during life

time; then on death, a deemed disposition for tax purposes and capital gains will be captured by trust and paid by the trust

o Joint partner trust : All income to settlor and spouse and only they have access during life time

o Requirement for Alter-ego & Joint-partner: Settlor must be 65+ Settlor and recipient must be a Canadian resident

Estate freeze : Vehicle where defer tax on gains from time of freeze forward thus “freezing” the value and gains in the hands of the current owner (all that is taxed is the value of the freeze)

(2) Exemptions Principal Residence Exemption

o If you satisfy the principle residence requirement no capital gain whole value tax free

o Trust can sometimes claim this exemption but ability to do so is more limited (3) Credits

Definition: Offset tax payables: Example of credit would be charitable donation credit and gifts to qualified donees

Disposition to Qualified Donees o Certain kinds of charitable gifts result in both a credit that can be applied against

tax payable and an exemption from capital gains Ecologically sensitive land *must be qualified as so under ITA Cultural property *must be qualified as so under ITA

(~4~) Use losses to offset gains

REAL LIFE ESTATE ISSUES

A. PLANNING FOR PERSONS WITH DISABILITIES

Trust

Why a Trust: Flexible, trustee managed funds, succession of management, choice in payment structure (fixed or discretionary), there’s payment for the benefit of a beneficiary, preserves disability benefits

EAPDA

Qualifications: Condition #1: “Persons with Disabilities” : Over 18 + suffer from severe mental or physical impairment Condition #2: “Do you have too many assets?”


Asset Test –o If single can have up to $100,000 non-exempt assets

Family is double that so $200,000o Exempt assets include: Clothing // Necessary household equipment // One motor vehicle // Place

of residence // Assets in a trust (section 12(2) of Reg.)o Section 12(2): Up to $200k of the aggregate value of beneficial interest in assets are held in trust

exempt from the asset test (minister may permit a higher amount) Income Test –

o Where non-exempt income exceeds benefit, then the benefit is losto Where non-exempt is less than benefit, benefit reduced by amount of incomeo Two types of income: Applies to both earned and unearned income

Unearned income includes money or value received from a trust or inheritance Earned income: you can earn $1000 dollars a month and you can still get it excluded

o Exemptions – Payments from a trust for a “disability-related cost” is not treated as income “Disability-related cost” means:

Devices or medical aids // Caregiver services // Education or training // Renovations to accommodate and maintenance & Any other item or

service the minister considers necessary to promote independence (wiggle room)

Prohibition Against Disposition (EAPDA) Where there is a failure to accept or pursue or dispose of assets for inadequate consideration, there is a

loss of benefits or reduction in benefits at the minister discretion Where disposition of asset is to reduce asset amount, then the person will be automatically ineligible for a

specified time

Trusts for Disabled Persons: A will cannot simply leave nothing to the disabled person if WVA applies (sometimes, in order to preserve the disability benefits, a person will be disinherited)

Registered Disability Savings Plan

Background: Akin to RESP with a maximum lifetime contribution of $200kRequirement: Where the person is an adult, only the disabled person or the legal representative may establish a RDSPTerms of the RDSP: Only the disabled person may receive it during his lifetime and the estate will receive on death. Additionally, must begin to make lifetime disability assistance payment after 60 years oldBenefits: Disability savings grant and disability savings bond + assets are exempt for EAPDA + contributions are exempt income under EAPDA

B. CREDITOR PROTECTION

Protecting Who?: A discretionary trust is often the best way to protect B from themselves and others as B will never have the asset itself, so the beneficiaries’ creditors won’t have a claim against it

However, note the limited ability to protect themselves because of the FCA

Fraudulent Conveyance Act: You cannot give away your assets with the intention of delaying or defrauding your creditors (if you do so, the transaction is void)

“Creditors and others” can mean future creditors

C. CONFLICT OF LAW

Introduction: Counsels must consider assets in other jurisdiction when planning gives rise to temptation to “forum shop” for jurisdiction with that would be the most advantageous to the case


BC Court Jurisdiction: Two Part Test

1. Jurisdiction simpliciter / territorial competence; o Test is whether there is a “real and substantial connection” between BC and the facts on which

the proceedings against the person is basedo CJPTA, S10: factors that give rise to a rebuttable presumption of real and substantial connection

2. Forum Non Conveniens: If this is the convenient place to hold the proceedings a. CJCPA, S10: relevant factors comparative convenience and expense // avoid multiplicity of

proceedings // avoid conflicting decisions // enforcement of eventual judgement // fair and efficient working

Essential Validity of Wills under CL

Essential validity = whether the will is the validly expressed will of the will-maker, who had testamentary capacity and was free from undue influence and knew and approved of the contents

o Applied to immovable property (land) = governed by the lex situs, the law of the place where the land is situate

o Applied to movable property (personal property, bank accounts, money, etc.) = governed by the domicile of the will maker at date of death.

Same choice of law rules as apply to essential validity claimso If will maker domiciled outside BC, only the will maker’s real property in BC is subject to a claimo If will maker is domiciled in BC, real property in BC plus personal property located elsewhere (but

not real property located elsewhere) is subject to a claim Notwithstanding above, enforcement issues must always be considered.

Express Trust Claims: Settlor of a trust can determine the applicable law of the trust and many trusts contain “choice of law provisions”

If no choice of law clause, trust is governed by the law “with which it is most closely connected”; determination made by looking to (a) place expressly or impliedly chosen by the testator; (b) the place of residence or business of the trustee; (c) the place where administration of the trust is carried out

Constructive Trust: Look to “the proper law of the obligation”: look to the law of the jurisdiction where the enrichment occurs (Christopher v Zimmerman)

Resulting Trust: Court applied the choice of law rules to succession of property (law of domicile of deceased for movable property and lex situs for immovable property) to a resulting trust claim. (Frey v Heintzl Estate)

D. FAMILY LAW

1. FAMILY LAW ISSUES

FAMILY LAW ACT84 Family

PropertyFamily property is all real and personal property that on the date the spouse separate is owned by at least one spouse or in which a spouse has a “beneficial interest”(2)(g) Specifically includes growth in value of the property during relationship (3)(a) Specifically includes part of the trust property contributed by a spouse which could vest or revest to the spouse and over which a spouse retains a power of appointment

85 Excludes Property predating the relationship Inheritances Gifts from a third party


Settlement awards Insurance proceeds Any of this property held in trust for benefit of spouse “a spouse’s beneficial interest in property held in a discretionary trust (growth in

value of discretionary trust is also included in exemptions)o (i) to which spouse did not contribute, ando (ii) that is settled by a person other than a spouse”

84(2)(f) Control Property disposed of by spouse over which the spouse retains the authority to require its return or direct its use or further disposition in any way

Beneficial Interest in a Discretionary Trust

Trust Law – named beneficiaries are actually potential objects of a class of beneficiaries – they might get everything, nothing or something in between therefore no property interest; and

Beneficiaries of a discretionary trust means that the trustee can do whatever; no one can say they have an entitlement to an x amount of money

Family Law – “holistic approach” – non-beneficiary spouse should be able to get relief against trust or trust property – beneficiary spouse has something of value.

This is to prevent spouses from hiding assets from each other

Nowak

[Typical Freeze]

Husband entered marriage with a commercial property. Sold it to NewCo. (wholly owned by new Family Trust) 18 months before separation. Husband received preferred shares and a promissory note. Trust beneficiaries were husband and 3 children from first marriage. Husband was initial trustee

Majority held that the common and preferential shares was family assets but the trust property (growth shares) were not

Purtzki v Sanders

[FRA – “Ordinary Use” Test]

Husband settled home into trust before marriage and used home during marriage (has been a trustee but not trustee when marriage broke down). Husband was one of several discretionary beneficiaries. Trustees were his buddies. Clear to the court that husband effectively had control of the trust

Appeal court founds the trust was discretionary in name only as the spouse maintained control

Looked behind the trust wo look at what was going on

Grosse

[Estate Freeze]

Husband had created the trust by disposing of growth shares (caused growth shares in co. to be issued to Trust) but retained power to consume, invoke or dispose of the shares

Court treated that as family property and ordered division of trust growth shares

M.C.V. v F.V.

[FLA]

Spouse disposed of property into a trust after relationship began but maintained control of the trust property

Increase in value was held to be family property for the purpose of FLA division

V.J.F. v S.K.W.

[Advancement]

Husband received gift of $2 million from the estate of his employer (excluded property). He purchased a property with the money in the name of his wife for creditor protection. When the spouses separated, the husband tried to argue that the property should keep its excluded property characterization

FLA does not provide a complete code and the common law and equitable principles relating to property still apply

2. PGT ISSUES

Statutory Mandate: Protect legal and financial interests of minors; Protect legal, financial, personal/health care interests of adults requiring substitute decision making (incapable adults); Administer the estate of deceased or missing persons

Issue #1: Notice of Application for Grant of Probate to

Review grant applications to protect interest of minors/incapable adults & to ensure shares of estate of minors/incapable adults is protected on distribution

Application for grant must provide notice to PGT where a mentally incapable adult


PGT

has or may have an entitlement to a share in an estate (WESA, S121) PGT review for adequacy of provision, determine whether shares going to

minor/incapable adult is going to someone with authority to hold it, may require posting of security for administration process

Issue #2: Funds to Minors Under Wills Where No Trust Provisions

Where a minor is entitled to estate and no trustee is appointed, on distribution, the executor/administrator must pay share to PGT (WESA, s153)

o Applicable to intestate estates or where will fails to appoint a trustee for minor’s share

PGT will hold estate until minor turns 19

Issue #3: Review of Settlements in Variation Claims

PGT review settlements of variation claims where the interests of a minor or incapable adult are impacted

Need court approval of settlement in these cases, on notice to PGT If PGT does not approve settlement, parties unlikely to get court approval PGT will usually require some provision for minor beneficiaries if their contingent

interest a will is being eliminated by the settlement
