In Ontario a person is entitled to change his/her mind and revoke his/her will. There are a number of ways to revoke a Will. One such way is for the testator to burn, tear up or otherwise destroy it or by having some other person do so in his or her presence and by his or her direction with the intention of revoking the Will. But, sometimes there is no witness or proof that any such destruction took place. That begs the question - what happens if after the testator dies no one can find the Will and no one has knowledge that it was destroyed?
In Canadian law there is a legal doctrine called “proprietary estoppel”. This doctrine will arise where the owner of land, let’s call him Albert, leads another person, Barbara, to believe that they will enjoy a benefit over Albert’s property, and in reliance on that belief, Barbara acts to her detriment to the knowledge of Albert, and Albert takes advantage of Barbara by denying Barbara the benefit at stake. While the concept may appear confusing at first, the Ontario Superior Court provides a clear illustration of how the doctrine works in Love v. Schumacher.
Section 28 of the Estates Act provides the court with jurisdiction to appoint an ETDL in the context of a Will Challenge or removal of an executor. Arguably, based on the cases reviewed herein, for those matters outside the parameters of s. 28 of the Estates Act the Courts may rely on subrule 75.06 (3)(f). The tests for exercising that discretion are set out in in Kalman v. Pick and McColl v. McColl. When the conduct of the estate trustee is endangering the administration of the Estate the court will exercise its discretion to appoint an ETDL to ensure the transparent and orderly administration of the estate.
Allegations that younger women sometimes marry older men for their money are nothing new. But with people living longer and the transfer of one trillion dollars from one generation to the next, it appears as if the concern about financial predators is more commonplace. In part, it’s because the Baby Boomer generation has considerable wealth, and while medical science has increased the average lifespan it has not made comparable progress in reducing the cognitive impairment associated with the aging process. More wealthy elderly people with heightened vulnerability are easier prey for the financial predator.
On January 5, 2017 Ontario’s Court of Appeal came out with a decision which is of great interest to those dealing with limitation periods, the responsibility of trustees to creditors, and the defence of fraudulent concealment.
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.
Sometimes, people in second marriages who make wills balance two loyalties. On the one hand there are the children of the first marriage. On the other hand there is the new spouse. The road often travelled is to provide the spouse with a life interest in the estate assets. But, what does that mean? For example, who should pay the realty taxes or repairs? What about landscaping or utilities? If the intent was to provide the spouse with income to support her is she entitled to give that money away to someone else? Well – that depends on what the will says.
Trusts are often used to control children and grandchildren from the grave. Sometimes the will-maker (“Testator”) holds back the money until the beneficiary reaches a certain age. Other times the money is held back until the beneficiary graduates from college or gets married. Many a beneficiary resent the conditions attached to their inheritance and they wonder – can we “bust the trust”? Well the answer is maybe - if you fall into the Saunders v Vautier Rule.
On July 30, 2015, the New Brunswick Court of Appeal heard arguments for the proposed appeal of the trial decision in the McCorkill v. McCorkill Estate (“McCorkill”) matter. The trial decision was unanimously upheld. But, before I explain why, let’s go back to the start of the story.
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?