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”. 

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. 

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.

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.

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.