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.

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.

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.

As Estate Lawyers, aka Estate Litigation Lawyers known in the USA as Estate Litigation Attorneys we cannot help but observe the human condition.  Our hope is one will find helpful information among the many blog articles posted on our website and to hopefully convince potential clients that we have some degree of knowledge about the complicated legal areas of Wills, Estates and Estate Litigation.

An unspoken aspect of these blogs is that in addition to informing our readers is to attract clients to our firm.

However, this is a blog article that is pointedly directed at attempting to dissuade individuals from retaining our firm or any other before one enters the slippery arena of estate litigation. More than once, I have been silently amazed when supposedly loving siblings or other family members come to do legal battle over money rather than the real treasure at hand, namely family relationships. It is as if siblings grow on trees.

This was all recently prompted by a response from a client Ms. Diane A.  She declined pursuing a potential action against her siblings by stating “I don’t want to destroy family relationships over money”.

This caused me to attempt to find other quotes on the subject. There are many, but a few that I felt were worth repeating.

Money is a good servant but a terrible master, especially when it overrules family.

When it’s a matter of money or family, remember, they print money every day.

Fortune without a family to share is a treasure without value.

Poor is the man who chooses gold over family bonds.

In the arithmetic of life, family is an asset that never depreciates.

Sacrificing family for fortune is a trade, poorest among all.

Family is the anchor that holds; money is just the tide that comes and goes.

Exchanging family ties for currency notes is a poor bargain indeed.

Money is a replaceable asset, family isn’t.

And finally, the quotes that in my opinion say it best:

Money can buy many things, but it can’t replace the joy of a family dinner.

Can money buy the laughter that echoes in a family gathering? Never.

Estate litigation lawyers have to keep a close eye on the scales of justice. In essence, the responsibility as to who has to prove what, keeps swinging back and forth throughout a trial.

Perhaps this blog is a little too technical, but I thought it might be helpful for those considering launching a Will challenge to appreciate how complex and sand shifting the responsibilities are.  Using an American term an estate litigation attorney when facing a Will challenge, has to follow a cascade of steps in determining whether or not there is likely going to be a successful result at the end.  The one thing that is certain is that it is extremely expensive, and the results are uncertain. In the spring of 2024, the Ontario Court of Appeal upheld the fall 2022 trial decision of Madam Justice Tamara Sugunasiri.

Interestingly, Justice Sugunasiri had only been a judge for a few months by the time this interesting and hard-fought matter came before her. It required a three week trial and apparently no stone was left unturned. An appeal was launched and failed.

As Justice Sungunasiri observed, this was a family given to hyperbole and at times pigheadedness.

The steps set out in Roe v. Roe are as follows:

a. Did the willmaker aka the testator have testamentary capacity. This test goes all the way back to the 1870 English Queens Bench case in Banks v. Goodfellow. For a further summary of what is testamentary capacity, take a look at our blog titled:

Exotic Attacks on Will Validity – The Usual vs. The Unusual and

Lack of Testamentary Capacity

b. Did the willmaker have testamentary capacity at the time that he or she instructed the lawyer to prepare the Will, and when the Will was signed.

c. As set out in the 1995 Supreme Court of Canada decision in Vout v. Hay, the legal burden first rests on the propounder, i.e. the person saying that the Will is valid, usually the applying executors.

i. If the propounder can prove on the most superficial of levels that the Will is valid, the burden shifts to the attacking party.

ii. But if the attacking party can raise an issue or excite the suspicions of the court, that suspicious circumstances were involved, then the burden shifts to the propounders of the Will. Their burden is on the balance of probability. They must prove that the willmaker had the mental capacity to execute a Will, did not suffer from insane delusions and understood the assets forming her estate. As we explained in our earlier blog also this would include, did the willmaker appreciate who the normal beneficiaries would have been of her estate.

iii. If the propounder meets the burden, then the attacker on a balance of probabilities would then attempt to show that the testator aka the willmaker was unduly influenced, i.e. the willmaker lost their free will.  Someone else had forced the willmaker to do what they did.

Suspicious circumstances are those that:

a. Surround the preparation of the Will.
b. Call into question the capacity of the willmaker.
c. Raises the question was the free will of the testator lost by coercion or fraud.
d. Look at the extent of the physical and mental impairment of the testator at the time.
e. Was this new Will a big change from prior Wills.
f. Does the Will make testamentary sense.

These are examples of how suspicious circumstances can be raised.

So, it is a legal duel.  Good estate litigation lawyers like all good trial lawyers are diligent theatrical impresarios.  It is as if two competing artists take turns painting the same canvass.

Reading the trial judge’s decision, the matter appeared to be a loser from the outset.  However, the appeal raised the failure of the judge to discuss and weigh the many contra indicators of the validity of the Will.  As one can see the Court of Appeal gave that argument little weight and deferred to the trial judge who actually heard the evidence.

“Wills lawyers Brampton some might search for, and hopefully will lead to our virtual door”.

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.