As a general rule when people own assets or property on joint account or joint tenancy there is a right of survivorship. So for example, if Frank and Peter have a joint bank account and Frank dies, then Peter is entitled to all that money by right of survivorship. Two recent Supreme Court of Canada decisions have underscored the need to carefully document a person's intentions with respect to jointly held assets.
Law suits often start when siblings discover that one child was made a joint account holder by a parent. When the parent dies the child, as the remaining joint tenant, claims the money by right of survivorship.
Anneta Sguigna, an 86-year-old immigrant to Canada, spoke very little English. She hired an Italian-speaking lawyer and told him to make a Will giving all her assets to her son Fred. The Will was signed, but no one translated it for Anneta before execution. The court accepted that the Will was drafted in accordance with her instructions. Arguably, since Fred was the only surviving son, the Will made logical sense. The court accepted that Anneta knew and approved of the main provision of the Will: that all her money was to go to her son Fred.
Seventy nine year old Bruce Bennett was on his deathbed and Mark Frederick was the lawyer called to the hospital to prepare a new will. Bennett wanted to leave money to Peter Hall. Bennett was quite lucid when conscious and capable of giving simple directions, but he could not deal with issues like his net assets, debts or the exact value of his property or bank accounts. During the interview with the lawyer, Bennett could only stay awake for a few minutes at a time. He could not remember the full extent of his estate and was not alert enough to review or sign the will. The lawyer did not believe Bennett had the capacity to make a will and accordingly never agreed to open up a file and would not take a retainer. That night Bennett died and Peter Hall received no money from the estate. He sued the lawyer.
Have you ever wanted to disinherit your spouse? In Makan v. McCawley [1998] O.J. No. 1206 a Mother had enough of her husband. She called her lawyer and instructed him to make sure that all her assets would be inherited only by her children and grandchildren. Mother and her husband owned certain property together as Joint-Tenants. In this type of ownership the one who lives longer automatically becomes the owner of the whole of the property. For the testator's children and grandchildren to inherit this property, the lawyer had to change the type of ownership to Tenants in Common so that each spouse's interest could be left to anyone the testator wishes in his or her Will. Since the estranged Husband was the executor and sole beneficiary under the old Will, the Lawyer had to draft a new Will which excluded the spouse and named the new beneficiaries.
Shelly used her power of attorney to transfer her mother’s house into her name. That started a law suit. But that’s the middle of the story, let’s start at the beginning. Shelly lived with her mother Ruth in her Forest Hill home worth $1.4 million. The only other asset Ruth had was $300,000 in cash, which she inherited from her late husband. In 2001 Ruth appointed Shelly as power of attorney over property and personal care. Ruth also drafted a will where she left her house to Shelly with the balance of her estate to her son Mike.
The purpose of this article is to examine the precedent Living Wills developed & published by the Commission on Medical Ethics of the Rabbinical Council of America and Agudath Israel of America in the context of Ontario law. This paper will address whether a hospital is bound by a written power of attorney for personal care which requires that the Substitute Decision Maker (“SDM”) consult with a rabbi and be bound by the rabbi’s decision concerning end of life issues.
Benji was 44 years old and had lived with his mother all his life. He paid no rent and contributed no money towards the upkeep of the home. His older sister Esther was the capable child. When their mother planned for the future, she appointed Esther the Continuing Power of Attorney, but left the house to Benji in her will.
Sherrell was the only one of the four siblings who lived near her mother. She took care of Mom and helped administer the finances. To facilitate the process Mom gave a Power of Attorney for property in favour of Sherrell. The lawyers were called in when Mom died and certain financial transactions came to light. There were numerous issues in the court case. This article addresses the Power of Attorney and its use to transfer some money. One month prior to her mother's death, using the Power Of Attorney, Sherrell transferred $35,000 from her mother's account to her own. The lawyer for the brothers claimed the transfer of money was an unauthorized withdrawal and should be returned to the Estate.
Would a disposition of property be void for contravening public policy if the precondition was a requirement that the proposed spouse be a certain religious faith? Generally, Ontario courts respect the rights of testators to dispose of their assets as they see fit. This fundamental principle is demonstrated in Renaud v. Lamothe, [1902] C.C.S. 145. The court held that the testator had absolute power to deal with his property, regardless of any moral or natural claims on him. Under certain circumstances, the legislature provides for the disinherited to challenge a testamentary disposition.