This is an issue in both non contentious estates as well as those that involve Estate Litigation, when people who have a financial interest in an estate fight. Many people do not realize that an executor may charge for their work in administrating an estate, especially one in which they are so appointed under a will. The law while imprecise has been debated by the courts for over a hundred years. We begin by looking at The Trustees Act section 61(1), which to paraphrase reads; “An executor is entitled to fair and reasonable payment for the care, pains and trouble and the time spent acting as an executor as maybe allowed by a judge.” While the law is broad and general, in the 1905 case Toronto General Trust Corp v. Central Ontario Railway held that there are five factors that are to be looked at: Yes the law on this subject is at least 119 years old.

(a) The size of the estate
(b) The care and responsibilities arising from the estate
(c) The time occupied in performing the executor’s duties (which is why we advise our clients to keep track of the time they spend as executor)
(d) The skill and ability displayed; and
(e) The success which has been obtained

A more practical method has arisen. These are referred to as tariff guidelines or even rule of thumb guidelines. These were described in the Jeffrey Estate, a 1990 decision of the Surrogate Court. It is worked out at two and a half percent for capital receipts/capital disbursements, revenue receipts/revenue disbursements and a management fee of two-fifths of one percent on the gross value of the estate, each year. This could be simplified into five percent of the value of the estate. The court and Jeffrey said that a judge trying to determine the amount of executor compensation should first test the compensation claims using the rule of thumb and then cross check or confirm the mathematical result against the five factors set out in Toronto General Trust Court. The leading case on all of this is the Laing Estate v. Heinz, a 1998 decision at the Ontario Court of Appeal.

One must remember that executor’s compensation is taxable in the hands of the executor and is to be declared on one’s tax return. One strategy that has not been approved by CRA is for the willmaker to leave a specific bequest as an example $30,000 in lieu of the executor receiving compensation. This may or may not pass the smell test should CRA take a close look, but is commonly used.

In other blog articles, we have touched on what this author calls the horseshoe rule of Wills. Prior to January 1, 2022, for a Will in Ontario to be found to be valid, it had to meet the minimal requirements set out in The Succession Law Reform Act. However, since the onset of COVID, the law of Wills in Ontario have undergone a relative revolution. One of those revolutionary enactments was section 21.1 of The Succession Law Reform Act. It permits a judge if satisfied that a document accurately sets out what a person wanted in their Will, to certify that to be a valid Will of the Will Maker, even though it fails to meet some of the requirements of the law.

Also as discussed in our other blog articles, Justice Fred Myers of Toronto seems to have become a magnet for decisions in this soon to be exploding area of law.

I remind our readers that I have spoken repeatedly about how misguided section 21.1 is. It is a magnificent way of clothing what appears to be a flexible rule of Will interpretation, from what in reality is a money-making scheme for lawyers. Far be it from me to complain.

Justice Myers in the very interesting case of White v. The Estate of Violent White, a decision released on June 21, 2023, actually addresses a completely different issue, namely whether or not a party having a financial interest in an estate can go on a fishing expedition and at least ask to look at the drafting lawyer’s notes to see whether or not they contain any information that might buttress their attempt to set aside the Will.

Justice Myers quite properly deferred answering that question for a more fulsome hearing and cited the important decisions in Neuberger as well as the Johnson v. Johnson decision of the Ontario Court of Appeal in 2022. Justice Myers reminded all, that there needs to be at least a minimal evidentiary threshold of some evidence that would call into question the validity of a Will, that is not successfully answered by the responding party. In other words, you cannot simply take a wild shot and ask for discovery of information without at least a basis for pointing out suspicious circumstances and facts in support thereof.

But that was not the interesting portion of this decision. In the White case, you have a woman who upon approaching her deathbed wanted to do a new Will. She had spoken to a lawyer that she had chosen herself and made arrangements for a new Will to be prepared. The lawyer duly drafted a Will based upon the new instructions, and the woman’s son attempted to arrange the final appointment between mother and lawyer.  The lawyer arrived at the hospital and indicated that the visit was to review the draft Will and for it to be signed. When the lawyer arrived, the woman stated that she was not feeling up to discussing it and asked the lawyer to return another day. Five days later, the woman died without ever meeting the lawyer again or finalizing the new Will.

The interesting side point was whether or not the draft Will was enough, and that it might indeed be fixed by section 21.1 of The Succession Law Reform Act. Justice Myers poured water on that idea. To paraphrase the Judge, “I am dubious that section 21.1 could apply on these facts. The lawyer’s e-mail stating that she wanted to have a telephone conversation with the woman does not sound like a Will that was ready for signing. A draft Will is just a draft. It is common to see changes made as late as during the signing ceremony. Case law from Western Canada, where the horseshoe rule has existed for some time, discusses the need for a court ordered Will to record a deliberate or fixed and final expression of intention as to the disposal of the deceased property on death. It is hard to see how a draft Will can meet that threshold.”  In simpler language, Justice Myers is saying a draft Will is simply that a draft, and that until at least finally approved, you do not have a final expression. In the end, Justice Myers did not make a final decision on this on this point and deferred it to a fuller hearing on the point.

Dale Streiman Law LLP can raise another alternate fact situation. In our office, it is common before the client attends at the office to sign their Will, we will have a telephone or zoom meeting with the client and review the documents in detail. The clients will suggest any changes that they wish and then finally approve the draft. The only difference between the draft being reviewed by the client and the final version signed are dates in the vast majority of times. It is extremely rare for a further change to be made at the time of signing. Would this satisfy Justice Myers and the existing law as to whether or not a draft is indeed a reflection of the Will maker’s final expression of what they wanted in their Will. Great fodder for lawyers making money, not so certain that in reality all one is doing is giving clients a possible out when they have unnecessarily dragged out a process that they should have long earlier attended to.

Tough love, but heck someone has to say it.

The facts of this case can be found at Part 1 of this blog

The court reviewed as we have in other blog articles various areas of law such as the law of resulting trust and undue influence, the most important of which is the 2007 Supreme Court of Canada decisions in Pecore and the 1991 Geffen v Goodman Estate case.

The presumption of resulting trust is based on the foundation that the court’s starting position is there must be a contract and an exchange of value rather than a gift. However, the presumption can always be rebutted by evidence and there was clear evidence in this particular case that indeed the intention was to make an actual gift.   In other words the starting point is no one does anything for free, and if you say it was for free prove it, or lose.

The father also raised an ancient equitable legal doctrine known as unconscionable procurement. It is debatable whether or not this indeed is the law and the Ontario Court of Appeal in the similarly named Geffen v. Gaertner 2019 would not  confirm that unconscionable procurement indeed is valid law. The Nova Scotia court in Fairfield described the doctrine as follows; the doctrine of unconscionable procurement applies where the party seeking to set aside a wealth transfer transaction is able to prove two things.  A person obtains a significant benefit from another by gift or other voluntary wealth transfer and the person obtaining the enjoyment of that benefit was actively involved in procuring or arranging the transfer from the maker.

When those two elements are present, presumption of fact operates that allows the court to infer that the transfer was not properly explained or fully understood by the maker. The court is entitled to scrutinize the situation with its moral sense awakened with a view to deciding whether the maker fully appreciated the effect nature and the consequence of the transaction.

In as much as the doctrine is one of equity, the court is ultimately being asked to decide whether the transaction is conscionable or unconscionable. The onus is on the attacker to prove that the maker did not enjoy the full appreciation mentioned above and that as a result is unconscionable.   In plain English and as an example.  Adult son takes Dad to his lawyer and has Dad sign documents gifting Son a large bank account.  Son’s sister learns years later of this “Gift” and claims unconscionable procurement.  It is sister’s job to get her foot in the door.

In essence, there may have been both doctrines at play, namely unconscionable procurement and further the doctrine of resulting trust.  However both of them merely aid the court when there is a lack of clear evidence one way or the other.  In this particular case, the evidence was clear to the point and we simply had a father who had changed his mind after being warned repeatedly and independently of the consequences of his actions. Sorry no take backs.

THE FACTS  – PART 1

We have the elsewhere discussed the legal components of a gift and its ramifications. We suggest our readers simply use the search bar on our website to find a number of blogs touching on “gifts”.

A common fact scenario when a court examines the issue of a gift arises from elderly parents being preyed upon by their greedy children or similar abuses. In the interesting British Columbia Court of Appeal decision in Sandwell v. Sayers, a April 2023 decision of the court we have a set of circumstances that to the average reader would clearly seem to be a gift that had been made in the fullest and eyes wide open of circumstances. The difficult father had arranged to make a gift of a 1/2 joint tenancy interest in his home to one of his adult daughters. This could only be done with the services of a notary public in British Columbia, who took great care to ensure that the father knew what he was doing. The notary public made the father think about the transfer, had explained the ramifications of the transfer, made the father sign various documents confirming to the father the legal effect and irrevocability of the gift, and despite all of these warnings by the notary public, the father proceeded and signed the transfer of the half interest in his home gifting it to one of his daughters.

On December 4, 2020, the father met with the notary public and signed the documents relating to the transfer. The notary dragged his feet to ensure that the father again had been given sufficient time to ensure that his intentions would remain unchanged and the documents effecting the transfer were not registered for almost another week. Eleven days after the transfer was registered, the father contacted the notary public and asked for the transfer to be unwound.

The trial court was not impressed by the father and dismissed his application to set aside the transfer. Father was still not satisfied and appealed to the British Columbia Court of Appeal. The Court of Appeal was similarly not impressed and in this author’s view, simply said sorry no take backs, you knew what you were doing and it is too late.  The court reviewed as we have in other blog articles various areas of law such as the law of resulting trust and undue influence, the most important of which is the 2007 Supreme Court of Canada decisions in Pecore and the 1991 Geffen v Goodman Estate case.

The law is described more fully in part 2 of this blog.

The Honourable Justice Chang in July of 2023 rendered his decision in the case known as the Estate of Harold Franklin Campbell.

The case centered around section 19(1)(b) of The Succession Law Reform Act that reads “a Will that has been…revoked is revived only…by a codicil that shows an intention to give effect to the Will.. that was revoked”.

More simply put, a Will that has been cancelled can be brought back to life if it is done by way of a written amendment known as a codicil and in accordance with the formalities of The Succession Law Reform Act that shows an intention to bring the Will back to life.

As we have discussed in other blog articles commencing January 1, 2022, the law was amended to create what this author calls the horseshoes rule. All the formalities under The Succession Law Reform Act  “SLRA” are not absolutely necessary as long as you get close enough and a court can be convinced that the document was indeed a reflection of what the deceased wanted within their Will.

The facts are relatively simple.  Harold Campbell made a Will, and named his children as his beneficiaries. He remarried and under the law as it then existed (it no longer does), the Will was revoked also known as cancelled by that subsequent marriage. After the date of marriage, Harold signed two notes, which he signed and stapled to the inside cover of his original pre marriage Will.

The judge by reading the two holographic aka handwritten notes, thought it was quite clear that these notes were to be amendments to the cancelled Will and showed an intention by Harold that he still wanted to give effect to the old pre marriage Will.

In other words, it was clear to the presiding judge that there was no difficulty fitting within the four corners of 19(1)(b) of The Succession Law Reform Act.

The judge however felt that the horseshoe rule, more formally known as section 21.1 (2) did not apply. For once a judge felt that this was a bridge too far and could not be used to bring back a Will from the dead.

An interesting small corner of the law of wills and estates, but an important one.

Justice Charles Chang born and raised in Toronto with primarily a background in commercial litigation and was only appointed April 4, 2022. In other words, fourteen months into the job, an interesting decision by Justice Chang.

The COVID-19 virus has changed the world as we have known it, and those changes have reached into the previously set in concrete laws dealing with Wills and Estates.

Estates of anyone who died after January 1, 2022 may take advantage of an amendment to The Succession Law Reform Act. Specifically, section 21.1 which we have already canvassed in earlier blogs such as Changes to the Law of Wills and Surrogate Will signing Part 3, permits a court to after the fact fix a Will so long as the court is convinced that the document before it sets out the testamentary intentions of a deceased. In other words, if the piece of paper, even though improperly signed or drafted, does indeed properly reflect what the deceased wanted to happen with their assets upon their death it can be deemed to be their will. I have described this as changing the law of wills to into a game of horseshoes. In this author’s view, this changes the law from one of certainty when all one must do is follow the very few formal rules set out in The Succession Law Reform Act into now a new arena and money-making process for lawyers.

There have been almost no decisions under this under this new law, however the Honourable Justice Frederick L. Myers seems to have attracted the litigation that does exist in this area.

Justice Myers in his brief decision in Vojska v. Ostrowski decided that a Will that was improperly signed solely due to the negligence of the lawyer that drafted and witnessed it, could be remedied under this provision.

If one has ever signed a Will before a lawyer, the scene is usually the following. Commonly you will have a husband and wife, the lawyer and a clerk. There are numerous documents including Powers of Attorney, Directions and the Wills and a Joint Retainer Agreement to be signed. These if careful attention is not paid, can float around and it is not impossible unless a strict routine is imposed for a signature to be missed.

This author early in my career was embarrassed when a client pointed out that my signature had been missed.

From that day onward, my routine is quite strict. My signature as a witness does not happen until it has been signed by everyone else, so that when it is my time to sign, I can see that it has already been executed by all but myself.

Unfortunately, in the above noted case, the lawyer involved was not as detail oriented as he should have been and he forgot to witness the Will of the deceased. It was signed by everyone but he.

Under the law prior to January 1, 2022, the remedy would have been a lawsuit defended by the lawyer’s negligence insurer, who would have made-up for any loss.

Justice Frederick L. Myers felt that this circumstance perfectly fit within section 21.1 (1) of The Successional Law Reform Act. There was a fair amount of evidence, that this was simply a screw up on the part of the lawyer and that the intent was for the documents signed by the now deceased was indeed meant to be her Will. Justice Meyers stated “…part of the goal of paying a professional is to produce valid outcomes and to avoid the common errors that lack of ordinary care produces”.

A bit of background on Justice Frederick L Myers with whom the author shares a forename. Born and educated in Toronto, the distinguished jurist clerked at the Supreme Court of Canada for Chief Justice Bora Laskin. Serious credentials in the legal field. Justice Frederick L. Myers also obtained a Masters of Law from Harvard, which he proudly cites as his most distinguished credential.

Justice Frederick L. Myers also made companion decisions in Cruz v. Public Guardian and Trustee in which he again held that the facts met the test under the amended Succession Law Reform Act. Justice Cruz also further made some comments upon the new law in the decision of White v. White.

The moral of the story is that there is a methodology for fixing a Will, if it meets the appropriate test. However as the author stated earlier, with just a little bit of care and attention to detail, a client can take advantage of the relatively inexpensive cost of having a lawyer prepare a Will and the all important accompanying Powers of Attorney. Otherwise, people continue to find themselves under the thumb of a pennywise pound foolish decision.