In Canada, the law balances the idea of testamentary independence against public policy concerns. While cherishing testamentary freedom, the law intervenes when it finds provisions in a will offensive to public policy and or equity. Other public policy issues addressed include the court’s treatment of end of life issues.
In the Wawrzyniak decision, the elderly patient was suffering from numerous illnesses including gangrene. Both his legs were amputated above the knee. The patient’s daughter, his attorney for personal care, was also a nurse. It was clear to everyone involved that both the patient and the attorney for personal care wanted CPR to be administered in the case of a cardiac or respiratory arrest. But it didn’t happen. Why not?
The unanimous decision in Carter v. Canada (Attorney General), released on February 6, 2015, drastically changed the landscape of Canadian law with respect to physician-assisted death (“PAD”).
The Supreme Court of Canada (“SCC”) set aside those provisions in the Criminal Code that criminalized PAD. The Carter decision specifically does not impose any obligation on doctors to participate in any way in PAD and leaves the balancing of patients’ and doctors’ rights to first be addressed by the legislature and regulating bodies. In its newly introduced legislation, Bill C-14, Prime Minister Trudeau’s Liberal government chose not to address the issue. The College of Physicians and Surgeons (the “College”) wants to impose an obligation on physicians to make referrals to patients seeking PAD.
According to a recent news report, certain doctors in Quebec declined to revive patients who attempted suicide. Their rationale? The attempt to kill oneself constituted an advanced directive. I specifically am not commenting on any possible criminal liability, if any, because criminal law is not my expertise. But, as a lawyer who is certified as a specialist in estates and trusts law, I wholly disagree with the characterization of a suicide attempt as constituting an advanced directive. As a person who believes in the sanctity of life I take exception to the conduct of those doctors in Quebec.
There are those who would argue that in Ontario, testamentary freedom is paramount. That means that, when making his will, the father had every right to be prejudiced, mean, whimsical or even cruel. After all, the argument goes, it’s the father’s money and he can do whatever he wants with it. Why should the law interfere with a person’s will if the law would permit the father to do what he wanted to do with his money during his lifetime? The father could have donated all of his money to charity before dying, or spent it all at the casino. There are many lawyers and academics who take this view. There are others who disagree.
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?
There is interplay between sections of the Family Law Act (“FLA”), and those of the Succession Law Reform Act (“SLRA”), in particular as it relates to the definition of “dependant”. That interplay may affect the second prong of the two prong test to determine who, in fact, is a dependant for the purposes of bringing a dependant’s support claim.The law is unclear on whether one may contract out of a dependant’s support claim by entering into a separation/domestic agreement upon the termination of a marriage or marriage-like relationship. The case law is very fact-specific, and below is a summary of some recent decisions.
This cheat sheet is intended as a quick reference guide for estate litigators dealing with limitation periods. For a comprehensive review of this topic I refer the reader to articles written by senior members of the bar I have found very useful which I believe are worthwhile to review.
For an Orthodox Jewish lawyer who is representing Jewish parties who are suing one another in a secular court, an ethical question arises. It gets further complicated where the client’s rights under secular law far exceed the rights they may have under Orthodox Jewish law. And this may very well be the case in the laws of inheritance.
As chair of B'nai Brith Canada's Trusts & Estates Group I oversee the committee that chooses the subject matter and format of the continuing legal educational programs offered every year to the lawyers and accountants of our community. We choose topics that are relevant to the profession and to the Jewish community. This year we are examining whether a clause in a will that disinherits a child for marrying outside the faith is legal.
In Belvedere v. Brittain Estate, Lora and Jeffrey started living together. As their 23- month relationship grew stronger Jeffrey promised Lora that when he died Lora would get his RRSPs worth about $1.75 million, as long as they were still living together. Jeffrey insisted that Lora sign a cohabitation agreement before he would keep his promise. Before the agreement was signed Jeffrey died. Was Jeffrey’s promise legally enforceable? At trial Justice Brown of the Ontario Superior Court of Justice decided that Lora would get the money. Jeffrey’s estate appealed.