Commercial and Estate Litigation Blog

Moral Obligations and Wills

Paul suffered from Becker's Muscular Dystrophy. He often fell, had trouble standing up or sitting down and going down stairs was arduous. When his parents divorced, Paul's father undertook to support him and recognized that this obligation was to survive his death. In his Will, Father left $125,000 trust to care for Paul. The disease was progressively debilitating and the expense for Paul's care substantially increasing. It was clear that not even Father's entire estate of $650,000 would be enough to care for Paul. He asked for increased support with a dependant's relief application under the Succession Law Reform Act . The court considered the morality of giving everything to Paul at the expense of the other beneficiaries.

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The Ex Left Her Out of the Will

Mr. Grant died and left behind both his wife and ex wife. He signed a separation agreement with wife number one where he agreed to provide spousal support for the rest of her life. However, the first Mrs. Grant was not a beneficiary under his Will and upon his death the last Mrs. Grant declined to continue support payments to the first Mrs. Grant. The first Mrs. Grant applied to the Court for a lump sum payment that reflected the money she would have received had Mr. Grant still lived.

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If it’s not fair

A young man was living with his elderly aunt. She promised that if he would be good to her, she would leave her house to him and take care of him in her will. The nephew did odd jobs around the house, drove his aunt around town and to different cities. He honoured his aunt's request, but she did not keep her word and left him noting in her Will. The Supreme Court of Canada determined that this was not an issue of enforcing a contract. It was an issue of fairness. In cases like these, the Courts have to determine if it would be inequitable to allow the promisor to keep everything while the other party provided the service. In this case, the Court found that the Aunt was unjustly enriched and it gave the nephew an award commensurate with the value of the services he provided.

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Estate Litigation Often Starts With These Questions

Did the Testator have capacity to make a will? Did the Grantor have capacity to grant a power of attorney? Courts look to a number of factors to answer these questions. There are a number of excellent articles and textbooks that address the tests and difficulties in litigating capacity. Addressing those issues is beyond the scope of this paper. The purpose of this article is to address the utility of a retrospective capacity assessment in the face of apparently overwhelming contemporary medical opinion evidence that opines that the person in question had capacity.

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Have Ontario’s Courts dispensed with Strict compliance with the Formalities of Execution?

Imagine that Johnny is dying. The doctors tell him to get his affairs in order. The patient’s only living relative is an elderly aunt whom he despises. Johnny wants to give all his money to his Church but, without a Will, by virtue of Ontario’s laws of intestacy that aunt will inherit everything. A lawyer prepares a Will setting out Johnny’s testamentary wishes. Johnny walks into the lawyer’s office, reads the will, and says it’s perfect. There is no doubt as to Johnny’s intent as the lawyer has taken the precaution to videotape the whole process. Johnny picks up the pen, is about to sign and dies. Is the Will valid in Ontario? It is almost certainly not valid, but there remains some doubt. If everyone knows Johnny’s true testamentary intentions what rationalization exists for not accepting the unsigned document as a valid Will?

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Dependant’s Relief, Support and Gifts Mortis Causa

Suppose Jane knew she was dying and gave the keys to her cottage to her favourite niece. Jane’s lawyer transferred title of the cottage to the niece. After Jane’s death, her husband, Mark started a law suit against the estate for support. He claimed to be a dependant and sought to have the capital value of the cottage deemed to be part of the net estate for purposes of ascertaining the value of estate. His lawyers claimed that the gift was invalid. Let’s take a moment to review Mark’s claim.

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What is a Resulting Trust?

Situations arise where legal title may be in one person's name, but the courts presume there was a decision to create a trust so that the equitable or beneficial ownership really belongs to another. Let's take a look at the recent British Colombia Supreme Court case of Borkenhagen v. Kessler.

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Certain obligations can trump testamentory freedom

At common law the proposition that a testator has testamentary freedom is foundational. Yet over time, Ontario’s courts and legislature have recognized that a testator has certain obligations that may trump that freedom. For example, the courts have used legal mechanisms like constructive trusts to protect disinherited spouses. The legislature has also passed laws that provide disinherited spouses with a division of net family property, as well as dependants, like children and common law spouses, with rights to receive support if they were not adequately provided for in the will. A question this seminar is raising is where to draw that line on the restriction of testamentary freedom. Will an Ontario court vary a will when a parent disinherits an adult child? The courts in British Columbia have.

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Will an Ontario court vary a will when a parent disinherits an adult child?

At common law the proposition that a testator has testamentary freedom is foundational. Yet over time, Ontario’s courts and legislature have recognized that a testator has certain obligations that may trump that freedom. For example, the courts have used legal mechanisms like constructive trusts to protect disinherited spouses. The legislature has also passed laws that provide disinherited spouses with a division of net family property, as well as dependants, like children and common law spouses, with rights to receive support if they were not adequately provided for in the will. A question this seminar is raising is where to draw that line on the restriction of testamentary freedom. Will an Ontario court vary a will when a parent disinherits an adult child? The courts in British Columbia have.

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