Who has a right to get a copy of the last will and testament? Or the right to see the estate’s accounting records? What about if the executors have sat on their hands and not done anything – who can ask the court to make those executors apply for probate? The answer to this riddle is a question: who appears to have a financial interest in the estate?
Our law values the right of the individual to decide what happens to their money after they die. It protects that right by ensuring that certain rules are followed when a person (the “Testator”) signs a Will. These rules are designed to avoid fraud. But what happens if those rules are not followed, but there is a virtual certainty that the Will in question reflects the wishes of the testator?
Whether you are buying your first home or papering a multimillion-dollar corporate deal, chances are you will see an “entire agreement” clause somewhere toward the end of your contract. Sometimes known as an integration clause, an entire agreement clause confirms that there are no other terms, conditions, warranties or collateral agreements to the agreement, whether express or implied, except for those expressly set out in the document to be signed. The reason for these types of clauses is obvious – you don’t want the other side taking the position that some previous draft or letter or e-mail formed part of your written contract, then suing you for breach or negligent misrepresentation.
In Ontario, when a person gets divorced and then dies his/her bequest in their will to the former spouse is revoked. The law reads the will as if the former spouse died first. So what happens when someone owned an insurance policy that designated the former spouse as the beneficiary – or what about the RRSP? Does divorce automatically revoke those designations?
The title of this article is an excerpt from Justice LaForme’s dissent, in an Ontario’s Court of Appeal decision dealing with the multiple spouse conundrum in the context of Ontario’s Pensions Benefits Act. This is not an endorsement of bigamy. It is addressing a growing social phenomenon.
Let’s look at the Alberta case of Meier v. Rose to see how the Honourable Madam Justice J.H. Goss addressed the issue of whether lawyers who draft wills are negligent for failing to verify ownership of property? In this case the lawyer (Mr. Rose) prepared a will for a long time client (Gary Meir). The client demanded that it be done the next day. Gary wanted to leave some farmland to his brother (Bob). The lawyer asked for the legal description of the farm land and in accordance with Gary’s instructions the farmland was left to his brother. But the gift failed.
In my research I came across the case of Douglas DeGuerre. His daughter, Joy Wawrzyniak, was the power of attorney for personal care. She wanted a full response including CPR in case of a heart attack. The doctors ignored her directions. Instead, they placed a do-not-resuscitate (DNR) note on DeGuerre’s file because the doctors felt that medical intervention would only prolong his suffering. The doctors did not tell the daughter about the change and felt they were not obliged under the Sunnybrook policy. Mr. DeGuerre passed away and the legal proceedings started. As reported in various newspapers and case law, the family complained to the College and lost. They appealed to Ontario’s health Professions Appeal and Review Board. Notwithstanding the fact that the Board and later on the College and disciplinary board rebuking them, the doctors were unrepentant. The family launched a law suit seeking $1,000,000 in damages. The trial is pending. I empathize with the family. Let me tell you why.
The Divisional Court decision in the Quinn v Carrigan case (Quinn), is useful for both lawyers and non-lawyers to determine the range of support that a court may award when a dependant is disinherited.
“Unfairness” is the motivation many clients cite when they complain about a will. Unfortunately, unfairness is not a good enough reason for a judge to set aside a will. So what is a good reason? First, to make things a little easier, let’s introduce a key term when discussing wills. The person who makes a will is called a testator.
Upon someone’s demise a personal representative is appointed. That appointment may come about through a testamentary document or by court order if there is an intestacy. The personal representative has two roles. He or she is responsible for collecting all the assets and paying the liabilities of the deceased. Thereafter, he/she must distribute the estate in accordance with the terms of the will, or if applicable, the laws of intestacy, or, if elected by the surviving spouse, under the entitlement provisions found in section 5 of the Family Law Act.