Be reasonable or the court will penalize you.  Estate Litigation lawyers constantly struggle with these decisions.

Justice Michael Valente lowered the hammer on a plaintiff who failed to act reasonably in an estate litigation matter.  We are examining the Judge’s 2024 decision in Kurt v Kurt & Sullivan.  The facts are muddled, but they are largely the following.  A lawyer made a mistake in drafting the Wills.  The unhappy daughter of the testator i.e. the person who made the Will, thought it was being interpreted incorrectly by the executors.  Her father died and the unhappy daughter tried to push that due to the error in drafting by the lawyer, one interpretation of the Will would have left her with an additional $800,000.  Problem is, she was far from being the favorite child.  There was no reason as to why she would have been preferred.  Justice Valente was not happy with the way that she had behaved throughout the litigation.   She made strategic but unreasonable offers to settle.  She carried on the case from a scorched earth perspective when there were equally effective and more summary ways of resolving the case.   She sed a lack of goodwill, and the Judge penalized her.  She argued that this entire case was not her fault, but because of an error in the Will signed by her father.  She accordingly asked that her legal fees be paid out of the estate, effectively causing her siblings to share her legal costs.   Wills and Estate Lawyers are familiar with this approach.

The Judge decided not to exercise his discretion to permit this.  The daughter spent over a $100,000 fighting a losing battle and the Judge made her not only bear her own costs but contribute to the costs of the estate.   It is important to note that Justice Valente distinguished this case from the 2010 Lipson v Lipson case which also contained a drafting error.  There the willmaker refused to read over his Will.  The losing daughter’s behaviour motivated the court to make her swallow the significant legal fees her demands made.  Be careful.

However, conversely one can argue strategically the opposite.  It is rare for a claim to go to trial and then face the consequences of a Judge’s wrath.  If you pursue a very aggressive and unreasonable stance, sometimes that forces your opponent to settle as they are running out of legal fees.  Not an easy decision.   An Estate Litigation Attorney as our American cousins refer to we lawyers as have to weigh the advantages and disadvantages of this strategy constantly.

IF you want to know what we as Estate Litigation Lawyers fight about read this blog.  Madam Justice Bernadette Dietrich on August 15, 2023, had a chance to decide a very interesting case which came before the Toronto estates section of the Ontario Superior Court.  One should note that Justice Dietrich is one of the pillars of the Estate Court bringing her vast experience as a lawyer and teacher in the area.   Mr. Williams, a wallpaper hanger and a $16 million dollar lottery winner in 2010, some 11 years before he passed away, was survived by two sons.

By the time he died he had approximately $11 million dollars in assets.   A substantial portion of that was in the form of real estate.  It appears that he had acquired expensive vehicles, jewelry, and cash, some which had disappeared by the time of his death.

Mr. Williams relied upon his lawyers, Carolyn and James Crate who drafted his Will and he named them his executors as well.

The Will called for significant compensation to be paid to the executors for their work.

Mr. Crate died less than two years after signing the Will.  The executors did an efficient job of administering and liquidating the estate within a year.  The executors attempted to charge $96,000 in legal fees and $300,000 in accordance to the terms of the Will as their compensation for acting as executors.  The two sons signed releases confirming the fees being charged and deducted by the estate trustees.

However, upon second thought, the sons changed their mind and objected to the fees.

In another blog article, How are Executors Fees Calculated we have discussed how executor’s fees are determined.  We have also examined how an estate is completed in our blog titled, How Does An Estate End.  In this particular case, the executors simply deducted their executor’s and legal fees, after giving some moderate warning of those fees, prepared basic releases and asked for the beneficiaries to sign those releases before the estate assets were to be distributed.  The sons signed the releases, but later objected.  Was it too late? In this particular case Justice Dietrich said it was not too late to object and for various reasons severely discounted the executor’s compensation from $300,000 to $195,000 and took a very sharp knife to the legal fees reducing them from $96,000 to $20,000.

The judge felt the executors had not made it crystal clear to the beneficiaries that they had every right to receive independent legal advice and to receive a highly detailed description of how the estate had been administered.  The judge rejecting the traditional five percent starting point calculated executor’s fees based on three percent of the Estate’s value. The judge applied the various rules governing how executors fees are calculated, which are described in greater detail in our blog article, How Are Executor Fees Calculated.   As Estate Lawyers the Crates should have attended to this detail.

The critical point that all of this turned on was the failure of the executors to urge the beneficiary sons to receive independent legal advice before they signed any document.  They should have been told that they had every right to do so.  They did not need to simply accept what was proposed by the executors, and the alternative of a formal passing of accounts and explaining what it meant should have been pointed out to them.

The lawyers while  wearing the hat of executor had a fiduciary duty to the beneficiaries.  That duty is ensuring that an estate is administered properly for the maximum benefit of the beneficiaries.  That is the executors’ prime directive.  In this case, they were clearly in a conflict of interest in which the executors, even though they have done a very efficient job, failed to observe all of their fiduciary requirements, which accordingly cost them the better part of $200,000.  To use an American phrase, this is all part of the job of an Estate litigation attorney.

As Estate Lawyers or Will and Probate Lawyers a question often asked is how does an estate end?  How does the executor finish their work in administering an estate? The courts have held that there are two methods.

Realistically there are three, going from the least to the most expensive.  They are, ONE do nothing.  The executor simply does their work in collecting the assets of the estate, making sure the debts are paid, making sure income tax returns have been filed, taxes paid and that the assets of the estate have been distributed in accordance with the terms of the Will.  The executor realistically does not have to do anything more than that.  More often than not this is how an estate ends and you encounter this in a close-knit family in which no one has any objections over how the executor has acted, and the executor is confident that no one ever will complain.

TWO When there are some concerns, if the executor is not a member of the family or a prime beneficiary, the lawyer will prepare a detailed schedule reflecting how the estate’s assets have been administered often including banking records, setting out the executor’s compensation sought, see our blog article on How are Executors Fees Calculated, the taxes and other expenses incurred and the proposed distribution.  Detailed releases are prepared and accompany the schedule which are to be signed by each of the beneficiaries before the estate is distributed.

THREE Lastly, the estate trustees can apply to the court for a passing of accounts.  Passing of accounts is an extremely formal and in some ways an arcane method of detailing every penny in and out, and every action taken by the executors which is subject to approval by the court.

All parties who have a financial interest, primarily the beneficiaries, may object and executor’s compensation is reviewed and approved.  Passing of accounts only takes the Estate to one point in time, the date of the judge’s order.  Actions taken after that date should an estate not have been finally administered might very well require a further court appearance. This is a very expensive process, but it is an estate expense and in that way all the residual beneficiaries are paying for that process.

An important aspect of administering an estate are the collection and distribution of the assets of the estate, after the payment of the Estate’s debts.  One of the debt obligations is to ensure that the income tax returns of the deceased and the estate have been properly prepared, filed and the taxes have been paid.

The court has reviewed the issue of the last 2 methodologies of ending an estate. It has been reviewed in the Sheard Estate, a 2023 decision of Justice Mesbur.  Justice Mesbur held that she had no problem with the concept of the executors asking for a release from the beneficiaries before a distribution of the estate can be made, however the beneficiaries must be made aware of no. THREE, the alternate of passing of accounts, which would give them the opportunity to object.  The beneficiaries can make their submissions on any steps the executors have taken in managing the estate.  Mesbur cited the 2016 Superior Court Eve v. Phillips case, which held that while an estate trustee is entitled to request a release and waiver before making a distribution the beneficiaries must be advised that if they do not agree the estate trustee will be required to formally pass their accounts and the beneficiary will have an opportunity to make their objections.  It is important that the executor’s request for a release is not simply stated as an absolute condition as was held in the Brighter Estate, a 1998 decision.  There the beneficiaries were told that their share will remain in the estate account and will not be released until the release has been signed.  The executor has no right to do so.  However, as was pointed out in Eve above, the better practice is to point out the realistic alternatives, and there is nothing improper about explaining the cost of a formal passing of accounts. Not only should the estate trustee when asking for a release, mention the alternative of a formal passing of accounts, but strongly urge the beneficiaries to seek independent legally advice before they sign any document, and that they should not be relying upon the executor’s lawyers for independent legal advice.  It is a quirk of the Law of Ontario, the lawyers assisting the executor on an estate acts only for the executors not the beneficiaries.

This is a common part of estate litigation and is an issue that has arisen a number of times in our practice.   This is something that as Estate litigation lawyers we encounter regularly.

In the short, only 24 paragraph long, but incredibly dense decision of the Alberta Court of Appeal in the Brodylo Estate, a number of legal and practical estate issues are put forward. The case stands for many propositions, but none more clearly than having more than one executor is a questionable idea unless there is a good reason for multiple executors being named.

Naming all four of your children is an invitation for serious trouble. It is not uncommon for drafting lawyers to insert a majority rules clause amongst executors in the event of a disagreement, however even these are not a cure-all. In this particular case, a majority rules clause was within the Will, but it was no help in the face of some strange behavior and positions taken by the majority. It is important to remember that the court has the authority to govern its own process, and this is based upon not only historical i.e. common law rights, but also statute law that places the court in charge of its own process.

It is impossible to predict when the court will flex its muscles, but a lack of rational behavior by executors is always a red flag.

Here we have an example of estate litigation when multiple executors disagree.

To paraphrase the court, even intelligent people of good faith can disagree. Add in a dose of family dynamics and it is easy to understand why there can be friction and conflict amongst co-executors leading to a paralysis in the decision-making process.

I often explain to my clients that naming more than one executor triggers an exponential increase in the people that become involved in running an estate.

Do not ignore the executor’s spouses who often have a great deal to say on the subject.

Appointing two rather than one executor can lead to four people all having different opinions on a straightforward decision that the testator i.e. the willmaker could not have cared less about. An example can easily be whose friend will get hired as the real estate agent on the sale of the estate’s major asset. The court reluctantly maintains the right to even order the removal in some cases of some or all of the executors when they do not cooperate. The court additionally has the ability to make an order eliminating the need of dissenting executors to sign or take any specific steps.

It is interesting to note that in this litigation, the legal costs were approximately $200,000 which could have been avoided with either good faith on the part of all, which is asking a lot with four siblings, or a narrower focused appointment of executors.

In November of 2023, Justice Graeme Mew rendered a very interesting decision in the case of the estate of Robert James.

On its surface, it was a relatively straightforward filed over the counter application. This is an example of estate litigation at the very doorstep of the process.

For those who are not regularly involved in estate law, applications for probate begins usually with a set of documents being filed over the counter at the courthouse. There is no physical or virtual court appearance. One simply files the documents and waits at times months for a response.

However, as the parties involved in the Robert James Estate learned the court always is in charge, and in this particular case exercised its inherent jurisdiction to say no. Mr. James signed his Will a half year before his death. He appointed a friend as the executor.

Two days after Mr. James died, the named executor quit formally known as renouncing. All of the beneficiaries agreed that Mr. William Bishop, a disbarred lawyer be appointed as executor. The court said not so fast, that doesn’t smell right and eventually rejected Mr. Bishop’s application to be so appointed. Mr. Bishop approximately 10 years earlier had been disbarred for being involved in dishonest and fraudulent mortgages. Eventually the beneficiaries of the estate filed material with the court explaining why Mr. Bishop had their support. It spoke of how even though he had been disbarred, they continued to trust his judgment and advice. There was also the strong suspicion that Mr. Bishop had prepared the application for probate, despite the fact that he was barred from acting as a lawyer.

Quoting from the 2016 book McDonell Sheard and Hull on Probate Practice, Justice Mew held that the court does have inherent jurisdiction to remove, appoint or pass over executors named in a Will. However, the courts are reluctant to interfere with the testator’s naming of who the executor should be. The court looks at ensuring that the interests of the estate are advanced and avoiding the risk of the estate not be properly administered and its assets endangered. At the same time under Section 7 of the Estates Act, the court has the responsibility of overseeing the granting of probate or letters of administration. The entire concept is for the court not to punish trustees for past misconduct, but rather to protect the assets of a trust in the interests of the beneficiaries. Most estates are a form of a trust.

In the end, the court could simply not wrap its mind around or overlook the problem of Mr. Bishop having been disbarred. To quote an important English case; “the purpose of being a lawyer and to uphold the profession’s reputation in the public’s eye is to maintain the reputation of the solicitors so that every member of whatever standing may be trusted to the ends of the earth”. The essential issue is the need to maintain among members of the public a well-founded confidence that any lawyer whom they instruct will be a person of unquestionable integrity, probity and trust worthiness. In other words, the court is trying to ensure that the public has with justification a reason to believe that the lawyer they are hiring will be acting in an honorable and trustworthy fashion. The court could not get over Mr. Bishop’s past wrongs in permitting him to be so appointed. As the court alluded to, that it might have been very different result had Mr. James named Mr. Bishop as the executor of his Will. Mr. Bishop jumping in and attempting to have himself appointed was a bridge too far ethically for the court.

The 2023 decision of Justice Robert Charney in Jackson v. Rosenberg is as the judge himself describes, “a Cautionary Tale for persons who might be tempted to use joint tenancy to avoid paying probate fees”.

This is an example of Estate Litigation before there is even an estate.

The case is a relatively long and complicated analysis of a fact situation which seems to have been triggered by a ridiculous conversation which we will describe later. The case emphasises that if one is going to use transferring ownership of money in the bank or a house into joint tenancy to avoid probate it must be done properly such as using our Full Monty scheme or everything will go sideways. Using our search window will pull up much information on the Full Monty. The facts of Jackson v. Rosenberg deal with a single man who tried to make arrangements for his great niece to receive his home after he died. In an effort to do so after his common law partner died, he added his great niece to the title to his home. Title was registered as Joint Tenants, which means an automatic right of survivorship. All went well and the great niece and her great uncle remained close.

One day after a family dinner in the absence of the great niece her husband foolishly told the great uncle that it was his intention to sell the house and to move to a larger property on a golf course and to have the great uncle come to live with them. This triggered a panic attack on behalf of the great uncle who felt as if his own home was about to be sold under him. Why the great niece could not simply have waited for her great uncle to pass away and to receive her survivorship gift/inheritance in due course is an astounding proposition yet that is what happened. Much turned on the great uncle’s intention when he transferred the home into joint tenancy with his great niece. Was she now a half owner of the home? What did she actually receive as a result of the transfer? Justice Charney made it quite clear that all that had occurred was that a definitive gift had actually been made to the great niece, but it was a conditional gift. It was in essence the great niece betting that if she outlived the great uncle then and only then would she receive a survivorship interest in the property. Or more plainly put – she had to wait for the great uncle to die before she got the entire house. The great uncle was successful in having ownership of the home returned to him alone and that until he died the house was his solely and he had every right to mortgage, transfer or sell it without the consent of the great niece.

The judge brought us back to the 2007 case of the Supreme Court of Canada in Precor v Precor, which stands for the rule that a transfer without payment is not a real transfer unless you can prove it was a gift. Much law was involved in this case, but all the average reader needs to appreciate is that one cannot simply start adding people’s names to homes without giving due care and attention to the effect. Justice Charney pointed out an attempt to save admittedly thousands of dollars in Probate fees was more than overcome by the legal fees spent in the lawsuit. All of it could been avoided by simply doing the proper legal work up front such as using the Full Monty strategy and all of the uncertainty would have been avoided.

The Justice referred to a conflict in the law across Canada. The decision made by Justice Charney was based upon his view of the law of Ontario and this author humbly agrees with him. The courts in Alberta and Saskatchewan have a different view on the ability of using the severance of a joint tenancy to get rid of the right of survivorship. Justice Charney pointed out that the law in Ontario is different from Saskatchewan and Alberta. Severance is legally cutting ownership of a property into individual portions with no right of survivorship.

In Alberta and Saskatchewan one of the joint tenant owners must provide notice and obtain the consent of their co-joint tenant before severance can be effected. However, while the great uncle was able to in essence take back much of what he had gifted to his great niece he was not able to take back the right of survivorship. That was something that was deemed to have been a perfected gift and as to the 50% of the home that was in her name, she would be entitled to receive that interest should she outlive her uncle and he continued to remain to be the owner of the home at the time of his death. However, this could be a hollow right in that the great uncle would have been legally entitled to sell the home and therefore the right of survivorship would have applied to in essence nothing, thereby frustrating the gift to the great niece.

Many different conclusions can be reached from the case but the most important one is consulting a lawyer that knows what they’re doing and prepare proper documents. The case is much more complicated than this one takeaway but hopefully it is a lesson that can be observed by all.

In the interesting Saskatchewan case of Gilchrist v. Gilchrist decided in September 2023 by Justice Curry, we have a number of legal issues and a family tragedy laying atop each other.

The facts are relatively simple although quite sad. Within a family, a brother had been convicted of sexually assaulting his sister over a number of years. Not surprisingly, the sister had nothing to do with her brother for the balance of her life. The sister made a Will in which she left the residue of her estate to her parents. She used a lawyer. However, the lawyer did not do their job. A lawyer’s job is always when given instructions by the client, to ask, but what do you want to happen if this was to occur, and the most common example of that is what happens if the person you are leaving the residue to dies before you? In the sister’s Will, she made no such provision.

The “What If” question has its limits as there can be no limit to the possibilities of life. But the most obvious need to be addressed.

Not surprisingly, her parents died before her and then when the sister died six years later, there was an obvious gap in the Will which resulted in an intestacy. In plain English, the Will did not say where the majority of the estate was to go under the circumstances.

One of the other brothers, who was named as an executor, attempted to push the rules of Will interpretation to ask the court that it was obvious that the now deceased sister had never intended to leave any benefit to the brother that had been found guilty of sexually assaulting her.

The court looked at the rules of Will interpretation, which are relatively consistent throughout the common law jurisdictions of the world.

On a foundational basis, one would begin with the Supreme Court of Canada’s decision by Justice Lamont in Smith v. Chatham Home of the Friendless. I paraphrase Justice Lamont’s comments. “Interpreting a Will, it is the courts’ job to figure out the intention of the Willmaker, which is to be done by looking at the entire Will. Every word is to be read in its ordinary meaning, and if technical words are used, they are to be interpreted in their technical sense. In other words, common sense is to be used. However, where the words within a Will might have different meanings, the court is allowed to not only look at the words within the Will, but also the circumstances surrounding and known to the Willmaker at the time when he or she made the Will and adopt the meaning most intelligible and reasonable as being the Willmakers intention.” This later embellishment by the Supreme Court of Canada made 90 years ago has been commonly referred to as the armchair rule. For the longest time, the armchair rule was interpreted that you look at the circumstances surrounding the time the Willmaker wrote the Will and that which was outside of the wording of the Will only if the words were ambiguous. However, in 2021 the Ontario Court of Appeal in Ross v. Canada Trust seems to have widened that door further. Justice Brown citing a number of other cases have held that the armchair rule is an overarching framework within which a judge applies the various tools for understanding and interpreting a Will. Evidence of surrounding circumstances should be taken into account in all cases before a court reaches any final determination of the meaning of the words. This is true even if the words themselves do not appear to be unclear.

In the unfortunate Gilchrist case, Justice Currie quite properly drew a line in the sand. It was inappropriate for the court to make up an entire provision of a Will. Is not for the court to create a provision in the Will fulfilling the lawyer’s job of “what if this happens”. The tragic result of this error, be it by the drafting lawyer or the refusal of the now dead sister to turn her atAtention to the possibility , has left the court with no alternative but to simply apply the rules of what happens under the prevailing provincial law when there is an intestacy. The brother who had been convicted of sexually assaulting the sister many years ago ended up receiving a share of the estate.

As to the Royal Family it is with some curiosity that I note that the level of the trial court in Saskatchewan is called the “King’s Bench for Saskatchewan”. Further, the lawyers that appeared on the case both proudly wear the initials KC, which refers to Kings Counsel. Depending upon the circumstances, having KC after one’s name is either a sign of professional competence, seniority or political connections. Long live the King.

In the summer of 2023, Justice Mandhane of the Ontario Superior Court decided a case that related to a family argument between a widowed mother and one of her adult sons.

As is quite common, the Sidhu family occupied a home in Brampton in which not only the grandmother, the registered sole owner of the home lived, but as well her children, a daughter-in-law and grandchildren.

Much of the case revolved around the specific facts. The son who had apparently been the families’ “manager” for almost 20 years argued that by virtue of the significant funds he and his wife had injected into the home over that time span, they were entitled to a 50% interest in the house.

The son’s argument failed due to a lack of evidence.

The son attempted to argue that his mother had been unjustly enriched as a result of his efforts and as such was entitled to a 50% interest in the home. The argument which is based upon long standing area of law encapsulated in two Supreme Court of Canada decisions Moore v. Sweet, a 2018 decision, and the famous Kerr v. Baranowa 2011 decision. The test is whether or not one party was enriched, another party suffered a corresponding deprivation and if that economic transfer had some type of a legal reason for it. In essence, we have the question as to whether or not one side became richer while the other became poorer for no good reason. Factually, the son failed to prove that.  All of the money he and his wife had pumped into the house was treated as equal to rent.

The central theme and conclusion one must come to from the case is that if indeed there is to be a home in which significant finances are involved, and the parties have nothing in writing to prove their respective interests in the event of a disagreement, there is going to be trouble. One can imagine the time, effort and family friction that was caused when mother and son faced off against each other in court.