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Category: Estate Litigation

CAREFUL DRAFTING REQUIRED

CAREFUL DRAFTING REQUIRED
Date: 30 Apr, 2025| Author: Fred Streiman

In the fall of 2024, Justice Anette Casullo rendered an interesting decision on a complex real estate/estate question.  Will and Estate Lawyers pay attention. In the case of Clements v. Emerson 2024 ONSC 4885, she dealt with a 24-year family saga about a parcel of land, which contained two buildings in Thorah, Ontario. During these 24 years, we had family estrangement, deaths, bankruptcies, emergence from bankruptcy and family drama. The case once again is evidence of estate litigation being a stew of different areas of law, but the moral of the story for the average reader is that careful drafting is required not only of Wills, but Trust Agreements that at times accompany those Wills. I recommend our devoted readers to take a look at the other blogs that we have posted on the issue of the “Full Monty”, which takes advantage of Trust Agreements to avoid probate. The law of real estate was involved, including the examination of the Conveyancing and Law of Property Act, along with bankruptcy law and will interpretation. Will Lawyers in Brampton often steer away from Real Estate Law but as we say, Estate Litigation Lawyers realize it is a stew.  A grocery store of different areas of law. 

In the absence of careful drafting, lawyers became involved, affidavits (written sworn statements) which triggered cross examinations, Factums, (which are detailed legal arguments), and  tens of thousands of dollars in legal fees were all needed, which could have been avoided if the Will and the Trust Agreement had been more carefully drafted. The matter in the end all turned upon whether or not a provision in the Will described how ownership of a property was given to two sisters. Did they own it as tenants in common or as joint tenants. Our readers can examine our other blog articles on the difference between these two forms of ownership. However, for the sake of simplicity, joint tenancy means a right of survivorship. The last person standing ends up owning the entire property. Tenants in common means upon the death of a registered partial owner of a property, ownership of that share then flows to where that deceased individual’s Will says it goes. Justice Casullo reminded everyone that the default is that when a Will does not make clear how that ownership is to be shared between two or more parties, the default is tenants in common, not joint tenancy. The default of course can be set aside if there is sufficient evidence on the face of the Will that the intention was indeed that the parties were to receive it as joint tenants. Much time, money and emotional effort was expended on answering this question.  

What is particularly interesting to this author, is in the thousand wills I have read over my career, drafted by a hundred different lawyers in Brampton for wills, I have never seen this issue addressed in a will.  Needless to say, our precedent is being updated.  It always is.  Wills and Estates Lawyer we are, and it means we never are content and always trying to improve our output.  

A thought-provoking aspect of this case is the Judge using common sense. It is not that Judge’s generally lack that ability, it is that often they feel their hands are tied by the legal requirements of the case before them.  

Another area of law this case triggered was unjust enrichment. This is a fairness rule, which the courts are able to enforce. One of the two sisters had paid many of the expenses for the entire property and felt that they should be reimbursed now that the judge held that ownership actually were held by the sisters as tenants in common. The Judge did not want to have the parties return to court. To quote the Judge “This matter has already consumed more than its fair share of legal fees and judicial resources not to mention the emotional toll to the parties, a reference (a type of mini trial) is not necessary as the movement forward to the finish line is a simple mathematical exercise. Each of the parties can provide a spreadsheet setting out the expenses”. 

WHO HAS THE RIGHT TO LIVE IN A PROPERTY AFTER THE OWNER HAS DIED

RIGHT TO LIVE IN A PROPERTY AFTER THE OWNER HAS DIED
Date: 15 Apr, 2025| Author: Fred Streiman

In the important Superior Court of Justice decision in Officer v. The Estate of Charles Herbert Officer,  Justice Faieta was called upon to settle the competing claims of the family of the late Mr. Charles Officer, who died at the young age of 48 without a Will. He was survived by his three year old son, his mother and his estranged common law spouse of five years, who was also the mother of his three year old son. When Mr. Officer died, he owned a condo in joint tenants with the former common law spouse Alice. Charles Officer’s mother Ione Officer lived in the condo, and she alleged that she had been promised by her son the right to continue to live in the condo for free for the balance of her life. She was an elderly infirm woman and pleaded that she needed the security of continuing to live in that in the condo. As Estate Lawyers who regularly have to act as Estate Litigation Lawyers ( Estate Litigation Attorney in the USA is the term ), the issue of who gets to live in a home after the owner has died is not that rare an occurrence. The court found that in the absence of anything in writing or any confirmation of this agreement, the mother had no right to continue to live in the condo and was required to move out.  The court examined  section 13 of The Evidence Act which states that a lawsuit against the heirs, executors or an estate cannot be successful unless the evidence is backed up by other material evidence. In the end, the courts held that that rule did not apply here, in that the contest was not between the mother and the estate, but rather between the mother and Alice. This then led to an argument as to whether or not the law on hearsay evidence was applicable. Hearsay evidence is canvassed in another one of our blogs.  

Recall this author’s earlier comment that estate litigation as practiced by Will and Estate Lawyers, is often an exercise in making a stew. Numerous legal rights are all poured in and must be examined. 

OCCUPATION RENT IN ESTATES

OCCUPATION RENT IN ESTATES
Date: 15 Apr, 2025| Author: Fred Streiman

Occupation rent is the legal term given to the compensation that is owed by someone who lives in a property without authority. This was canvassed by Justice Karakatsanis in the 2004 decision of Dagarsho  Holdings Limited v. Bluestone. The judge held that occupation rent is an equitable remedy, in other words, it is a fairness rule that the courts have at their at their disposal. If someone lives in a property without a lease, and even though there is no landlord and tenant relationship, the courts will imply a contract for rent to the landlord at a reasonable amount for the use and occupation of the landlord’s property. This principle is based upon the presumption that the parties have agreed to reasonable compensation. One can cancel that presumption if evidence exists. Occupation rent is also an appropriate measure of damages for trespass and unjust enrichment. 

This is an equitable remedy that the courts can apply.  It is a claim an executor can make when dealing with the problem adult child continuing to live in the family home. 

 So a common scenario for Will and Estate Lawyers, is an adult child, often a little excentric or dysfunctional who has lived with a parent for many years in the family home rent free.  The parent dies and the problem child continues to occupy the home with no legal right to do so.  There is no lease .  What can the executor or estate trustee do?  Well they come to us as Estate Litigation Lawyers.  The executor realizes it is very difficult to sell a home with someone living in it.  Well the claim, a part of estate litigation, is to ask for a writ of possession and additionally to ask that the problem child pay the estate occupation rent for the time they lived in the home. 

WHAT CAN YOUR ATTORNEY or GUARDIAN OF PROPERTY DO or NOT DO SEVERING A JOINT TENANCY

WHAT CAN YOUR ATTORNEY
Date: 21 Feb, 2025| Author: Fred Streiman

The 2024 British Columbia trial decision in the Markland Estate v. Benz, by Justice Lamb highlights many legal principles that Will and Estates Lawyers have talked about in our blogs. Presumption of resulting trust, joint tenancy, severing a joint tenancy and a gift with a right of survivorship. Enter any of these terms in the search bar to find more information on any of these concepts, as written by the Wills and Probate lawyer of our firm.

The facts of this interesting case are as follows. It touches on many arears of interest to Powers of Attorneys Lawyers and Estate Litigation Lawyers. Fourteen years before death, a grandmother transferred ownership of her home from herself to both she and one of her granddaughters as joint tenants. This granddaughter had been a great help to her grandmother. Joint tenancy means when one owner dies, the other surviving owner owns all of the property. That is what a right a survivorship means. But is that what the grandmother meant? It was in this case because the grandmother with good legal help twice in writing confirmed that the gift by a right of survivorship to the granddaughter is exactly what she intended.

After a series of strokes, the grandmother lost her ability to make decisions and three years before her death her son was appointed the committee (in Ontario that would be the guardian of property pursuant to The Substitute Decisions Act.) Two years later, one year before the grandmother died, the son using his court appointment moved to sever the joint tenancy. The son legally cut ownership of the home in half. There was no more right of survivorship. When the grandmother died one year later, the granddaughter would only keep her half of the house. She would not “inherit” the other half of the house by right of survivorship. Did the son have the power to do this?

What does a guardian of property or alternately an attorney using a Power of Attorney have the power to do independent of the now incompetent grandmother’s wishes. The answer in British Columbia was no, and here in Ontario again no. The Substitute Decisions Act of Ontario section 32 sets out that the guiding principals of an attorney or guardian it is to act diligently, honestly, with integrity and in good faith for the incapable person’s benefit. Paramount is determining what is in that incapable person’s best interest. The guardian is required to exercise the diligence and skill that a person of ordinary prudence would exercise in the conduct of his own affairs. They are entitled to liquidate assets for the benefit of the incapable person. They may even liquidate assets, if necessary, if it was contrary to the incapable person’s Will. But it does not give the guardian or attorney the power to change an incapable person’s Will or to write a Will. Those decisions had clearly been made by the grandmother and the son was overstepping his authority. The court reversed the severance of the joint tenancy by the son, and the granddaughter as had been planned all along by the grandmother, received all of the grandmother’s home upon her death.

The deciding factor in this case is the fact that the grandmother not only added the daughter’s name to the title to her home, but it was done properly. That is where the services of a competent lawyers in Brampton for Wills is critical.

REMOVING AN EXECUTOR IS HARD

REMOVING AN EXECUTOR IS HARD
Date: 05 Dec, 2024| Author: Fred Streiman

The Court has Options Short of Removal

In the September 2024 decision in Deziel v. Deziel, the freshly appointed Justice Barbara McFarlane touched upon a number of interesting points that apply to estate litigation and the administration of an estate. Estate Litigation Lawyers and simply Estate Lawyers need to keep these concepts in mind.

We begin with Justice Barbara McFarlane’s own interesting background. She had been a Judge for only a few months when she rendered this decision. Justice McFarlane began her legal career as a law clerk, worked her way up to becoming a lawyer, then partner, eventually founding her own law firm and has now reached the heights of becoming a Superior Court Judge. Obviously, a woman of substantial intellect and self motivation.

In the case at hand, the facts are interesting. We have a relatively small estate composed of a bank account and a modest home.

The mother left a will, and two of the four children of the deceased were named as executors. The Will gave the specific authority to any one of the beneficiaries having the right to purchase the home from the estate. In the absence of that provision, only a court or the unanimous consent of all the beneficiaries can permit such self dealing.

One of the beneficiaries/executors purchased the home. In the end, the other beneficiaries were able to convince the court that the home was purchased for some $30,000 below market value, and that it was inappropriate for the purchaser to have deducted their estimate of the real estate commission that would have been paid had the property been sold on the open market.

Also, the deceased mother had written out a cheque to one of the beneficiaries for $40,000. It was supposedly a gift in recognition of that beneficiary’s care of the ailing mother in the last few years of her life. Unfortunately, the beneficiary did not cash the cheque until after the mother had passed away.

I direct our readers to another blog titled Gift Gone Wrong in which the various components of a valid gift are set out. In this case, the failure to cash that cheque prior to death, cut out one of the prime components of a valid gift, namely delivery. The gift was not delivered and as such the gift failed and the $40,000 had to be returned. Justice McFarlane pointed out that upon their customer’s death, the donor’s bank ( person who wrote the cheque ) can no longer negotiate a cheque. Section 167 of the Bills of Exchange Act states that the duty and authority of a bank to pay a cheque is determined by countermand or notice of the customer’s death. As such, if there is a revocation stop payment of the cheque or notice of the death of the customer, the bank can no longer cash the cheque. We discussed this in our prior blog article on the Teixera v. Markgraf estate.

Justice McFarlane also pointed out, and as we have expressed repeatedly in these blogs, the role of being an estate executor imposes upon one a fiduciary duty. A fiduciary duty is one at the highest level of responsibility. Quoting the 1992 Supreme Court of Canada in Norberg v. Wynriv the executor of an estate takes the financial power that would normally reside with the beneficiaries and the executor must exercise those powers in their stead and for their exclusive benefit.

The remaining beneficiaries who felt that they had been financially injured as a result of the errors made by the executors, brought an application to the court. They asked for various relief, including reversing the sale of the house and forcing the home to be placed on the open market and returning the $40,000 gift. One must consider that none of this makes any financial sense. The court application had to have been extremely expensive, with costs amounting to many tens of thousands of dollars. Any benefit that the aggrieved beneficiaries would have obtained would only result in a 25% increase in their share of the estate. On top of that, we have the familial devastation that would have echoed amongst the four surviving siblings.

Nonetheless, such is estate litigation, and this is what estate litigation lawyers deal with all the time. For this to have made any financial sense, at least one or two additional zeros needed to have been added to the amount in dispute.

While the judge found that the executors had breached their fiduciary duty, she exercised her discretion which is extremely wide. The judge penalized the executor who purchased the home, made him pay the estate the $30,000 shortfall and as well made the beneficiary who received the incomplete gift of $40,000 return it to the estate. This $70,000 was then split 4 ways. In other words, for all of the effort, each complaining beneficiary gained $17,500.

Justice McFarlane felt that she had a wide discretion on what tools to use to fix the situation. The judge held damages must be a flexible remedy of equity, including equitable compensation effecting fairness and justice in the specific situation. There are times when traditional remedies may not be available or appropriate.

The Judge showed ingenuity and flexibility in not removing the executors feeling that there was no malicious intent, but rather the actions of inexperienced parties dealing with a modest estate.

Once again, we point out that estate litigation calls upon numerous areas of the law and is a stew of competing legal interests. None of these are cheap to explore or put forward, and again from the sidelines one can only shake one’s head at the issues between these four siblings that lead as far as a court case. A sprinkling of a common sense and goodwill could have saved all concerned easily a combined $100,000 in legal fees.

WHAT HAPPENS TO MY BODY AFTER I DIE and IF THERE IS NO WILL WHO GETS APPOINTED ESTATE TRUSTEE

Dale-Streiman-what-happend-to-my-body-after-die
Date: 21 Nov, 2024| Author: Fred Streiman

Sometimes in estate litigation, estate lawyers or estate litigation lawyers have to deal with the question of what happens to ones remains. Most people would assume that what they have told their family would be observed. But what happens if there is a fight amongst family members.

The general rule is that the executor named in Will has the authority and controls what happens to the deceased’s remains. This is not a statute written law, but rather based upon a long series of Judges’ decisions. Further, the law holds that while the deceased’s wishes should be honoured as far as possible, it is not legally binding on the executors. One’s wish even expressed in a Will such as cremation is not enforceable. In other words, these are simply an expression of a wish or desire which in legal terms are referred to as precatory. See the case of Saleh v. Reicherdt.

If there is no will there is a hierarchy of persons who should be appointed as estate trustees set out in The Estates Act section 29 (1). The judge in the Buswa v. Canzoneri case where the family members could not agree, decided to simply follow that order of priority. However, in a competing decision ZL v. LB, the judge pointed out section 29 (3) of The Estates Act gave the court broad discretionary power if there is no Will and that the court may appoint such person as it thinks fit upon his or her giving such security as it may direct and every such administration may be limited as it thinks fit. In other words, the court can name anybody that it thinks is appropriate to act as an estate trustee and not simply the spouse or a close relative.

In 2023 Nova Scotia case, Curry v. Curry, the court looked at a number of principles and Justice Keith wrote a long decision setting out the guiding principles on selecting an estate trustee.

It is the executor’s obligation to ensure that one’s remains are treated with dignity and disposed of in a respectful manner. The law on “ownership” of a dead body reachs all the way back to the 1882 English case in Williams v. Williams , and the 1952 Supreme Court of Canada decision in Schara Tzedek v. Royal Trusco. The Court has held there is no property in a dead body. As a result, any directions contained in a deceased person’s Will about their burial are not enforceable at law. The executor begins with presumptive right of possession over the deceased remains to ensure proper disposition. While this grants authority and control over the remains, it is not the same as the as ownership of the body.

Hopefully a family will abide by the wishes of the deceased, but that has never been a bar to estate litigation. Will and estate lawyers, have learnt this the hard way.

INTENTIONS MORE ON THE PRESUMPTION OF RESULTING TRUST

intentions
Date: 17 Oct, 2024| Author: Fred Streiman

When more than one person is a named owner of an asset, arguments can arise, both before and after death as to who is the real owner. Such is the occupation of Will and Estate Lawyers, aka Estate Litigation Lawyers.

In the area of Wills, Estates and Trusts not to mention Estate litigation, there is an extremely important doctrine of law called the presumption of resulting trust. We have commented upon that in a number of other blogs. Just use the search function on our Web Site and enter presumption of resulting trust. While the legal concept appears to be complicated, it is relatively simple and can be distilled down to two common sentiments. “Follow the money” and “what were the parties’ intentions”. Otherwise described as , who paid for the asset and why is the asset owned on paper this way?

The presumption of resulting trust may apply when a person is added either with a right of survivorship or simply as a joint owner to an asset. A common example would be when an elderly parent adds an adult child as a joint owner to their bank account. Did the parent intend upon their death that the adult child receive all of the money in the account or was the adult child simply added as a convenience and the beneficial owner remained even after death the parent, and therefore the disposition of that asset would be governed by the parent’s Will.

The 2024 decision of the Ontario Court of Appeal in Falsetto v. Falsetto is an interesting exploration of this area.

It involves the Planning Act, the doctrine of merger not being two faced, a divorce and a number of other areas of law falling one on top of the other. It is a common aspect of estate litigation, or the work of a Wills and Estates Lawyer that it is a melting pot of many areas of law, one being added on top of the other and requires an open mind on the part of the estate litigation attorney to keep in mind.

Our own Justin Bieber has a hit single called “Intentions”, linked here I am looking for the link to that video that I found on line, either Viveo or YouTube. Part of the lyrics of the song are “heartful of equity or an asset, make sure that you don’t need no mentions, yeah these are my only intentions”. I doubt Justin Bieber was commenting on the doctrine of presumption of resulting trust, but it is a curious coincidence that it highlights what two of a three judge panel of the Ontario Court of Appeals held. Namely that the overarching factor in deciding whether or not the presumption holds, is what was the intention when the trust was created. In the example set out above, what did the parent intend when they added the adult child to their account. When such a factual presumption arises, the onus is on the other, and in this example the adult child, to disprove the presumption. In other words to prove the intention of making a gift. “Heartful of equity or an asset”, the presumption of resulting trust is a doctrine of equity, in other words the fairness rules that the court applies. Did Bieber go to law school?

The Court of Appeal, which here was a panel of three judges was not unanimous although the majority came to the conclusion that intention was overriding all other factors, but Justice MacPherson dissented and found that the application judge was impeccably correct in that the Planning Act factors were enough to fill in the holes in determining intention. Justice MacPherson quoted two decisions Zacker v. Zacker and Styres v. Martin to support the conclusion that a party cannot achieve one result for the purpose of avoiding a legal consequence prescribed by statute – in this case the Planning Act – and achieve an opposite result for other purposes. Remember this dissent. The application judge lost out in the end, but this is an important legal concept to keep tucked away for future use.

IF AN EXECUTOR FAILS TO ACT COURT CAN ORDER RECOVERY FROM A BENEFICIARY’S SHARE OF THE ESTATE

COURT CAN ORDER RECOVERY FROM A BENEFICIARY
Date: 29 Aug, 2024| Author: Fred Streiman

In the Ontario Superior Court decision in Drennan, the straight-talking straight-shooting Justice Fred Myers ,who appears repeatedly in these blog articles rightly punished one of the beneficiaries of an estate who had been appointed as its executor. The non-cooperative executor basically did nothing in the administration of the estate and allowed the mortgage on the deceased father’s house to fall into arrears. This cost everyone money and the negligent executor simply closed his ears, mind and eyes to the situation causing significant costs to be incurred by all concerned. One of the other beneficiaries spent over $65,000 repeatedly returning to court to have her executor brother removed. In the end, Justice Myers agreed that numerous chances have been given to the uncooperative brother to behave. Not only were legal costs of $65,000 awarded against the negligent brother, the court also ordered a recovery from his share of the estate for all the costs and expenses that the estate incurred as a result of the slipshod executor. Fair warning to an executor who fails to properly administer an estate and to have further complicated matters by ignoring orders of the court. It also serves as an illustration that one’s inheritance is at risk if you fail to perform your duties as an executor.

Interpreting a Will or Sarcastic Advice – Write a Will Yourself

Interpreting-a-Will-or-Sarcastic-Advice-–-Write-a-Will-Yourself
Date: 04 Jul, 2024| Author: Fred Streiman

In the world of Will and Estate Lawyers or Wills and Estate Lawyers, it is extremely common for our office to encounter clients who feel that the modest fee we wish to charge for preparing wills is excessive and that they could do better by simply preparing their own Will. It is also not uncommon for our clients to use preprinted forms they have either bought at a stationary store or have downloaded from the Internet. From a purely sarcastic point of view, I strongly urge my clients not to use our office, but to simply give it their best shot in writing their own Wills.

The May 2024 decision of Justice Mario Faieta in the Baert Estate is a case in point. Here we had an estate that between the willmaker and his wife was worth approximately $3,000,000. Rather than preparing a Will with the services of a lawyer, the husband used a preprinted template form and wrote out his own Will instructions. There is no need to go into what occurred, but sufficient to say it was a mess and considering what actually transpired, the Will made no sense. The decision of Justice Faieta is an excellent summary of what the Ontario law is on Will interpretation, and I would recommend it as an excellent source of the law on the point. The court is to try and determine by placing themselves in the armchair of the willmaker as to what they actually intended. Decisions from the Ontario Court of Appeal, and even by the legendary late Lord Denning of England were quoted. Despite a failure of all concerned taking any position (and if they had that would have driven up the legal fees significantly), much money was spent on having the court interpret the Will in fixing its numerous inconsistencies. The moral of the story is if you would like to make lawyers in general far richer then the few dollars they will ask for drafting a Will, do us a favour, take a shot, do it yourself and leave it to a different lawyer after you are gone to pick up the pieces and make much more money funding a court application. Of course there is no way of predicting what a court might do in interpreting the Will, but that along with the excessive fees you leave your estate to pay, that is the risk that you take.

Estate Litigation Lawyers fortunately for us, unfortunately for our clients make a living from clients who are advocates of the penny wise pound foolish school of life.

Justice Faieta has almost 10 years of experience of being a judge and worked mostly in the area of Environmental Law before putting on the gown of a superior court judge.   A clever mind can learn new tricks and that is standard for the lawyers that become judges.

Insane Delusions

Insane
Date: 13 May, 2024| Author: Fred Streiman

In another blog article we commented on the Roe v. Roe decision by Justice Tamara Sugunasiri Where the Responsibility Lies in a Will Challenge.  Today we are going to look at one specific aspect of that decision and canvass the concept of Insane Delusions. This rather ancient and strange phrase arises from the legal fountain of all court cases related to attacking a Will. We are putting a microscope to the argument that the willmaker aka the testator lacked testamentary capacity.  We are of course referring to the 125 year old English Court decision in Banks v. Goodfellow. To quote “….. that no disorder of the mind shall poison his affections and pervert the exercise of his natural faculties.  That no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound would not have been made”. Long flowery language, more appropriate to Victorian England then today yet it still remains the sun which powers all court cases on testamentary capacity.

To expand upon 125-year-old quote, the Judge was talking about “if insane suspicion or aversion takes the place of natural affection.  If reason and judgment are lost the mind becomes prey to insane delusions calculated to interfere with and disturb its function…”. As the Supreme Court Canada held in the 1902 case Skinner v. Farquharson, delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination), against all evidence and probability and conducts himself however logically upon the assumption of their existence.

Further, this is a field that has been tilled numerous times, but in the 2019 Superior Court decision Slover v. Rellinger, there was an attempt to summarize all of this law and to turn it into something that is more understandable. The thread that runs through these cases is that for a testator to be found incapable on the basis of insane delusions, the delusion must be shown to be false and fixed, that is incapable of explanation or rationalization, and it must have taken over the person’s Will making.  Anger or resentment based on a fact that exists is not enough.  A Judge should ask can I understand how a person in possession of their senses could have believed the facts that have impacted the Will making.  Exaggerated response is not an insane delusion, a tendency to exaggerate or hyperbole is not the test. One might simply say that it is as simple as, has the person lost their mind and that the average person would simply assume the person was insane and not right in the head. A difficult test, but one is forced to diagnose the dead. Often senior will lawyers testify when they speak of whether or not the willmaker had capacity, that “I know it when I see it.”  It is a legal not medical test.

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