estates black w04 1 by OZs7afeV

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									                                                         Terminology

   personalty- non real estate assets (cars, furnishings, etc.)
   bequeth- a gift of non real estate assets, called a bequest
   testament- disposition of personalty
   legacy - testamentary gift of money

   Realty – real estate
   devise- a gift of real estate
   will- disposition of real estate
   codicil – Testamentary document which in some way modifies a will – can’t stand on its own, needs a will
             o NOTE: historically there was a difference between a devise, bequest and legacy – but not any more (e.g.
                 can devise personalty)

personal or legal representative - person who has authority to represent the estate – umbrella term
 if person left a valid will- usually person names an executor/executrix, now called an “estate trustee with a will”.
If deceased left a valid will then court appoints by letters probate [Application for Certificate of Appointment of Estate
Trustee with a will]. If a minor is sole executor, then through their guardians.
Courts do not like to deny named person – its an unusual and extreme course (Re Leguia).

 If dies intestate, - person with authority is called an administrator/administratrix or “estate trustee w/o a will.”
Application for letters of administration [Application for Certificate of Appointment of Estate Trustee without a will](Can
apply for application after 14 days)
 If dies with valid will but did not appoint “estate trustee with a will” Application for letters Probate [Application for
Certificate of Appointment of Estate Trustee with a will] (Can apply for app after 7 days)
Order of priority of admin (as in Estates Act 29):
1. Surviving spouse, common law spouse, or same-sex partner
2. Children
3. Grandchildren
4. Great-grandchildren or other lineal descendants
5. Mother or Father
6. Siblings
7. Other next of kin
* If no one willing or able – then beneficiaries can apply for letters of administration.

A WILL – A written document, signed usually by or for the testator/testatrix, both revocable and ambulatory (inoperative
until death), which by statute has the effect of disposing of property in possession and acquired by the testator/testatrix
between the date of the will and the date of death, and is made animo testandi.

1. Revocable – no legally binding rights or entitlements until testatrix dies. Though there is an expectation (spes
successionis), but testator can change that will as long as they have the required capacity.
Narrow Exceptions:
Weinstein – Idea that have a legal interest – testatrix at that point no longer had capacity, so could not revoke, therefore
beneficiaries had a legal interest. Gave beneficiaries a vested interest
However:
Dursley v. Fitzhardinge – Generally beneficiaries do not have an interest – for testator could change their mind or
beneficiary may predecease testator. Only have hope – hope calle spes successionis.

2. Animo Testandi – testamentary intention – in order to have a valid will, one needs both the will itself and the intention
to make the will. Rationale – More difficult to perpetuate fraud, duress, undue influence, or jest.
Immediate Testamentary Intent required – as such Conditional wills are not wills for a will that is conditional upon a certain
even happening does not satisfy the requirement that a will has to be made with immediate testamentary intent.
If it is about future – then the required animus is lacking.

3. Imperative form - Some provisions in will create legally binding – others are just expressions. Precatory language is
usually insufficient. Can’t say “ I also wish if you die soon after leave to all my and your people equally…” --- will be taken
as a suggestion (Johnson v. Farney). Though court could have ascertained testator’s intention – and concluded that
even though precatory meant wishes to be carried out.



                                                               1
Some – even in expressed as directions are of no effect - For example directions concerning the disposition of the
testator’s body are not binding, since the executor has the right to determine the manner of burial.

Other Wishes – may also refer to disposal of remains, appointment of guardians and custodians, however these are of
no effect if the will deals only with such matters, and not property. However, if merely appoints an executor is entitled to
probate – though property not committed to the executor.
So a will should dispose of some property, not necessarily the testator’s, and may deal with extra’s (personal rep,
guardian and power of appointment.

4. Only One Will – though it can be contained in many instruments – will, a codicil and any unattested doc which may be
encorporated.

Foreign Will – allowed to dispose of peroperty in jurisdicition of death – as long as it contains directions for the disposal
of property, is revocable, and according to formalities.

History of succession
1978 – No. of new statutes: Succession Law Reform Act (one statute, consolidating number of Acts)
1986 – FLA
1985/1986 – Substitute Decisions Act (incapacity, powers of attorney)
Early 90’s – Rules 74 and Rules 75 Civil Procedure – incorporate old wills rules

Changes of Terminology
Achieve gender neutrality & More plain language
* Difficulty that new terminology used in new legislation (Civil procedure) but older (SLRA) not amended, such that older
use old terminology.

                                                      Will Substitutes

* Done to minimize death taxes. Disadvantage is that many of them are irrevocable and several of them give rise to
immediate tax consequences.

1. Intervivos Gift
Gift away – then not part of estate (no capital gains tax). However, when make a gift of capital property (not arms length)
will be paying capital gain taxes today. Tax planners prefer to defer.

2. Deeds & Intervivos Trust
Transfer by deed absolutely, or life to yourself, remainder to children. Hard to change, can’t just keep the copy in your
possession to be disposed at death – then it’s a will, no inter vivos (no deliver) and were effective on death (Carson v.
Wilson). Must give up some interest/control.
But can have revocable intervivos trust Example Anderson v. Patton – Asked the D to distribute $5000 to two people,
gave him the money, specified that would be returned if the deceased demanded it. Court found created a valid intervivos
trust.
Transfer into trust, trustees will manage for beneficiaries, then deemed to dispose of property at fair market value.
                                                                                           nd
3. Joint Interests/Joint Tenancy – when first co-owner dies, passes automatically to 2 co-owner. No tax charged, gets
asset out of your estate automatically. (Exception if done to avoid creditors) Whereas tenancy in common, then co-owner
who dies could have willed away.
Presumption of advancement (gift) – it is presumed that the transferor or the person who supplied consideration did not
intend to make a gift, but to retain the beneficial interest in the property. In matrimonial abolished, replaced with resulting
trust. Not applied to joint accounts.
Ex. Edwards v. Bradley – Mrs. E and daughter – Mrs. E the sole depositer, then E dies. Does daughter have legal title or
as a trustee under a resulting trust for E? Held: As a trustee.
Totten Turst – depositor deposits money in form “A, intrust for B” – revocable and can just withdraw.

4. Gift Mortis Causa – Death bed gift
Requirements of gift mortis causa: (Slagboom Estate v. Kirby (1993) BC)
         1. gift must have been made in contemplation, but not necessarily in expectation of death
         2. delivery of gift to donee of subject matter of gift (deposit into account)
         3. gift must be made in such circumstances as to show that the gift is to revert back to donor if peril does not
            occur

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a.) If going on Safari – give keys to his car/safety deposit box (delivery of subject matter of the gift) and say – in event that
I’m eaten by a Tiger --- then its yours. [Contemplation, not expectation]
b.) Man in 90’s ill – gave keys --- if something happens to me the car is yours. What is “something happens to me”? Court
held that here they meant – “if I die” not related to specific cause of death, just generally. (Slagboom Estate v. Kirby
(1993) BC)
c.) Forgiveness of a loan can constitute a valid gift mortis causa

5. Life Insurance, RRSPs, Pensions & Annuities
Where owner has ability to designate a beneficiary. Does not flow through estate, but rather directly to beneficiary (avoid
admin taxes and creditors). Can designate through a will as well (Insurance Act, SLRA – whatever is latest designation). If
will invalid the designation made by will is still valid s.52(4).
Can designate a beneficiary irrevocably – can’t change w/o beneficiaries consent – useful re marriage breakdown.
Ex. Life Insurance to daughter and Will residue to mom.
Creditors take out of Will residue; nothing out of life insurance --- and daughter does not have to help mom out.
Immunity to creditors:
Though under attack – under the Income Tax Act to collect tax that is owing since it does not contain a provision
exempting property that is exempt under provincial law.
Also SLRA s.72 (support) – deems amounts payable under a contract of insurance effected on a person’s life and owned
by the person to be part of the deceased’s estate for purposes of determining the value of the estate.
Also can charge with payments of a dependant’s support order
RRSPs: Argument that RRSPs form part of estate, and subject to claims of creditors – incorrect.
Rely on argument that :
a) a distinction b/w contract of insurance (never for insured) and RRSP (money for them).
b) that pension legislation in most provinces does not contain a provision protecting from creditors (all except BC and PEI)
But: SLRA s.53 – which authorizes payment to the beneficiaries and provides that the beneficiary is entitled to enforce
payment.

Designation of Beneficiaries:
SLRA          Designation of beneficiaries      Includes all pension and retirement plans and registered retirement income
PART III                                        funds.
                                                Excludes RRSPS issued under Insurance Act
s. 50         What is Covered                   s.50 (a) a pension, retirement, welfare or profit-sharing fund, trust, scheme,
                                                contract or arrangement or a fund, trust, scheme, contract or arrangement
                                                for other benefits for employees, former employees, directors, former
                                                directors, agents or former agents of an employer or their dependants or
                                                beneficiaries,
                                                (b) a fund, trust, scheme, contract or arrangement for the payment of a
                                                periodic sum for life or for a fixed or variable term, or
                                                (c) a fund, trust, scheme, contract or arrangement of a class that is
                                                prescribed for the purposes of this Part by a regulation made under section
                                                53.1,

s. 52         Revocation                        s. 52 (1)A revocation in a will is effective to revoke a designation made by
                                                instrument only if the revocation relates expressly to the designation, either
                                                generally or specifically.
                                                (2) Despite section 15, a later designation revokes an earlier designation, to
                                                the extent of any inconsistency.
                                                (3) Revocation of a will revokes a designation in the will.
                                                Where will invalid
                                                (4) A designation or revocation contained in an instrument purporting
                                                to be a will is not invalid by reason only of the fact that the instrument
                                                is invalid as a will.
                                                (5) A designation in an instrument that purports to be but is not a valid will is
                                                revoked by an event that would have the effect of revoking the instrument if
                                                it had been a valid will.
                                                (6) Revocation of a designation does not revive an earlier designation
                                                (Earlier designations not revived – will need to take active steps after
                                                revocation of a designation).



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                                                     Rules of Intestacy

Complete Intestacy – nothing that you own is distributed by will
Partial Intestacy – part of assets left properly by will; others have not been
         a.) If no residue clause – but other specifics laid out
         b.) Bad drafting, Ex. My wife survives me, residue for life & If wife does not survive me, divide among my children
             --- But what if wife survives, then dies, does it go to kids?
         c.) If gift of residue fails – goes out on intestate

SLRA – PART II
s.1(1)  A. Definitions              "spouse" means either of a man and woman who, (a) are married to each other, or (b)
                                    have together entered into a marriage that is voidable or void, in good faith on the part
                                    of the person asserting a right under this Act; ("conjoint")
                                    * Unlike BC spouse only refers to hetero, legally married.
s.44     i.) Spouse/ no kids        The intestate’s spouse survives, but no issue = surviving spouse takes the entire
                                    estate absolutely.
s.45     ii.) Preferential Share    - 45(1) Subject to subsection (3), where a person dies intestate in respect of property
                                    having a net value of not more than the preferential share and is survived by a spouse
                                    and issue, the spouse is entitled to the property absolutely.
                                    Note: If net value is equal to or less than preferential share, $200,000 then the spouse
                                    gets everything (all property).
                                    - 45(2) Subject to subsection (3), where a person dies intestate in respect of property
                                    having a net value of more than the preferential share and is survived by a spouse and
                                    issue, the spouse is entitled to the preferential share absolutely.
                                    Note: If issue survive, the surviving spouse is entitled to a preferential share =
                                    $200,000, the first $200 000.
                                    - 45(3) Despite subsection (1), where a person dies testate as to some property and
                                    intestate as to other property and is survived by a spouse and issue, and,
                                        a) where the spouse is entitled under the will to nothing or to property having a net
                                        value of less than the preferential share, the spouse is entitled out of the intestate
                                        property to the amount by which the preferential share exceeds the net value of the
                                        property, if any, to which the spouse is entitled under the will;
                                        b) where the spouse is entitled under the will to property having a net value of more
                                        than the preferential share, subsections (1) and (2) do not apply.
                                    Note: If the deceased has died partially intestate, the share is reduced by the amount
                                    received by the spouse under the will.
                                    - 45(4) in this section, “net value” means the value of the property after payment of the
                                    charges thereon and the debts, funeral expenses and expenses of admin, including
                                    succession duty
                                    - 45(5) the preferential share is the amount prescribed by a regulation made
                                    under subsection (6)
                                    - 45(6) the Lieutenant Governor in Council may, by regulation, prescribe the amount of
                                    the preferential share
                                    Note: In effect, the legislatures have said where there is a spouse and issue, we want
                                    to give the spouse some priority rights, and this is $200,000 of net value of property

46(1)    iii.) Distributive Share   - 46(1) Where a person dies intestate in respect of property and leaves a spouse and
                                    one child, the spouse is entitled to one-half of the residue of the property after payment
                                    under section 45, if any.
                                    - (2) Where a person dies intestate in respect of property and leaves a spouse and
                                    more than one child, the spouse is entitled to one-third of the residue of the property
                                    after payment under section 45, if any.
                                     - (3) Where a child has died leaving issue living at the date of the intestate's death, the
                                    spouse's share shall be the same as if the child had been living at that date.
                                    Note: After the preferential share, the surviving spouse is entitled to a distributive
                                    share, which varies with the number of children or issue surviving.
                                    The amount received by the surviving spouse is not reduced if there is a partial
                                    intestacy
         B.) After the surviving    - s.47(1) subject to subsection (2), where a person dies intestate in respect of property
         spouses shares have        and leaves issue surviving him or her, the property shall be distributed, subject to the
                                                              4
been paid, the            rights of the spouse, (spouse already taken care of) if any, among his or her issue who
intestate’s issue are     are of the nearest degree in which there are issue (each line of generation down from
entitled to the balance   the intestate i.e. children, grandchildren, great grandchildren) surviving him or her
of the estate:            - s.47(2) where any issue of the degree [otherwise] entitled under subsection (1) has
                          predeceased the intestate, the share of each such issue shall be distributed among his
                          or her issue in the manner set out in subsection (1) and the share devolving upon any
                          issue of that and subsequent degrees who predecease the intestate shall be similarly
                          distributed
                          - Trying to preserve equality down the lies of descent
Distribution Among        1. Identify the issue alive in the nearest degree
Issue                     2. Identify issue in that degree, who are not alive but who have left issue surviving.
                          3. Distribute one of such equal shares to each issue alive under step 1.
                          4. Divide the equal shares equally among the issue of the people identified under step
                          2 (per stirpes)
                          * the key to a distribution on intestacy, is the determination of the number of shares
                          that are created – made on the nearest degree to the intestate to which there are issue
                          surviving (differs from will)
                          Intestacy look at first who’s the closest - Per stirpes look if someone alive in that line
                          – that line gets an equal share, then the next line gets an equal share to pt. of alive.
                          Per capita – All issue gets an equal share, regardless of degree – if 3 kids and 3
                          grandkids --- all 6 get the same (Ascendants of equal degree take per capita).
C.) Lineal Ascendants     Ascendants – direct ancestors of the intestate
and Collaterals           Collaterals – the issue of the ascendants, other than the intestate and his/her own
                          issue
                          Subject to adoption legislation – entitlement restricted to blood relations
                          - s.47(3) Where a person dies intestate in respect of property and leaves no spouse or
                          issue, the property shall be distributed between the parents of the deceased equally
                          or, where there is only one parent surviving the deceased, to that parent absolutely.
                          - s.47(4) where a person dies intestate in respect of property and leaves no spouse,
                          issue or parent, the property shall be distributed among the surviving brothers and
                          sisters of the intestate equally, and if any deceased brother or sister predeceases the
                          intestate, the share of the deceased brother or sister shall be distributed among his or
                          her children equally
                          Note: says children and not issue – this was challenged and the court held that the
                          legislature intentionally used the word children so that it stops at that level
                          - s.47(5) where a person dies intestate in respect of property and leaves no spouse,
                          issue, parent, brother or sister, the property shall be distributed among the among the
                          nephews and nieces of the intestate equally without representation (if any niece or
                          nephew alive then does not pass to offspring)
                          - s.47(6) where a person dies intestate in respect of property and leaves no spouse,
                          issue, parent, brother, sister, nephew or niece, the property shall be distributed among
                          the next of kin of equal degree of consanguinity to the intestate without
                          representation. (Table 79)
                          Note: grandchild; grandparent and brothers and sisters of equal degree of
                          consanguinity – but rules in s. 47 prefers to give share to grandchild, then brothers and
                          sisters before grandparent
                          - s.47(7) where a person dies intestate in respect of property and leaves no spouse,
                          issue, parent, brother, sister, nephew, niece or next of kin, the property becomes the
                          property of the Crown and the Escheat Act applies
                          - s.47(8) for the purposes of subsection (6) degrees of kindred shall be computed by
                          counting upward from the deceased to the nearest common ancestor and then
                          downward to the next relative, and the kindred of the half-blood shall inherit equally
                          with those of the whole blood of the same degree
                          Notes:
                          - The principle that half blood relatives inherent equally with full blood relatives applies
                          for all distributions on intestacy (not just (6)), not step, requires common parent
                          - legally adopted are considered blood relatives of adoptors/not natural
                          - s.47(9) for the purposes of this section, descendants and relatives of the deceased
                          conceived before and born alive after the death of the deceased shall inherit as if
                          they had been born in the lifetime of the deceased and survived him or her. en ventre
                          sa mere
                                                    5
Summary
1. If spouse and no issue  spouse gets everything (s. 44)
2. If spouse and issue, and estate worth < $200,000  spouse gets preferential share (s. 45) absolutely
3. If spouse and issue, and estate worth > $200,000  spouse gets preferential share, and then spouse and issue get
   distributive share (s. 46 & 47)
4. If no spouse and no issue  parents (s. 47(3))
5. If no spouse, no issue, no parents  brothers and sisters share equally with representation to brother’s and sister’s
   children (nieces and nephews) (s. 47(4))
6. If no spouse, no issue, no parents, no brothers and no sisters  nieces and nephews take per capita without
   representation (s. 47(5))
7. If no spouse, no issue, no parents, no brothers, no sisters, no nieces and no nephews  next of kin of equal degree
   will take per capita without representation (s. 47(6))
8. If no spouse and no next of kin survive  property of Crown (s. 47(7))




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                                                    WILLS - Formalities
Sample Will 235

Four Different Types
      1. Attested (witnessed will)
      2. Holograph Will
      3. Priviledged Will
      4. International Will
* If subsequent codicil – it does not have to take the same form

Requirements of Wills:

A. In Writing:

s.3          In Writing             A will is valid only when it is in writing.
                                    Note: It does not stipulate what it must be written on – egg shell or tractor fender “In
                                    Case I die I leave all to the wife” = valid.


Murray v. Haylow (Ont CA) - Used ditto “ ” marks in the Will
Trial – statute did not mention dots/dashes so not probated
Appeal – Wills Act coes not require the will to be “in words” – shorthand notes, even before being extended are “writing” –
ditto’s and short forms familiarly known - allowed appeal

B. Signature:
s.7      Signature –                7(1) In so far as the position of the signature is concerned, a will, whether holograph or
         Irregularities             not, is valid if the signature of the testator made either by him or her or the person
                                    signing for him or her is placed at, after, following, under or beside or opposite to
                                    the end of the will so that it is apparent on the face of the will that the testator
                                    intended to give effect by the signature to the writing signed as his or her will.
                                    Note: Must be somewhere close to the text – at, after, following, beside, at the end.
                                    (2) Not rendered invalid by the circumstance that,
                                    (a) the signature does not follow or is not immediately after the end of the will;
                                    (b) a blank space intervenes between the concluding words of the will and the
                                    signature;
                                    (c) the signature,
                                        (i) is placed among the words of a testimonium clause or of a clause of attestation,
                                        (ii) follows or is after or under a clause of attestation either with or without a blank
                                    space intervening, or
                                        (iii) follows or is after, under or beside the name of a subscribing witness;
                                    (d) the signature is on a side, page or other portion of the paper or papers containing
                                    the will on which no clause, paragraph or disposing part of the will is written above the
                                    signature; or
                                    (e) there appears to be sufficient space on or at the bottom of the preceding side, page
                                    or other portion of the same paper on which the will is written to contain the signature.
                                    Note: Does not give effect to anything underneath the signature, or inserted after the
                                    signature was made.

i. Signed by Testator:
Statute allow testator or some other person (amanuensis provision)
The attestation clause should state that the signing is done in the testator’s presence and at his or her request and also, if
the testator is unable to read – that the will was read over to the testator and they appeared to understand it.
Re White – Testator suffered a stroke, unable to speek well – nodded. Witnesses satisfied that capable. Helped to make
his ‘mark’ – whether properly executed. A direction or acknowledgement – could say sufficiently directed, but found that
testator himself signed, even though assisted.
(Authority - Wilson v. Beddard – signature by mark and a guided hand)

Note: A signature consisting of other than testator’s name may suffice – ex. Your loving mother.
Also Initials will suffice if intended to represent the testator’s name (Re Shultz).

ii. At End
                                                              7
Re Riva – SLRA s.7 Allows some foibles – Completed a printed will form in her own handwriting. One sheet folded to
form four pages, signatures on third – no room left, so on the back. Witnesses could not be located.
The writing on the back was hers, with intention of executing the document. Insufficient space forced on back, letters
written with similar content, content of will reasonable/proper, signature not needed for identification (already at start)
Issue: Wills Act – requires at the foot or end of doc
Reasons: ok to be on a page with no clause – but anything that follows not included.
Also mistaken date – no other will so ok.

iii. Dispensing Power/Substantial Compliance
Note: Some legislation has a dispensing power – permits the court to roder that the document be effective as if it had
been executed in compliance with all the formal statutory requirements.
Ex. Manitoba’s Wills Act:
Re Briggs (Manitoba) – held an unsigned holograph will as valid for document embodies the deceased’s testatmentary
intention.
Kuszak v. Smoley (Manitoba) – filled out printed form in own handwriting and signed it – but handwritten required the
printed words. But did embody testamentary intentions.
Ex. In Ontario:
Sisson v. Park Street Baptist Church (Ontario) – A will signed by only one witness valid – for they forgot to sign –
amounted to “substantial compliance” – even though Ont does not have substantial compliance legislation, so truly
Wrong.

C. Must Also Have Knowledge and Approval of Contents of the Will
Vout v. Hay (1995) SCC [Related to Capacity]

1. Attested Will:
Maxim used when No Proof one way or the other: omnia praesumuntur rite esse acta – if an intention to carry out
some formal act is established, an inference may be drawn that on reasonable probability the actor did what he or she
intended to do in the way the law proscribes it.

SLRA – Requirements of Attested Wills
s.4   Attested Will       Subject to sections 5 and 6, a will is not valid unless,
                          (a) at its end it is signed by the testator or by some other person in his or her presence
                          and by his or her direction;
                          (b) the testator makes or acknowledges the signature in the presence of two or more
                          attesting witnesses present at the same time; and
                          Note: Don’t need to acutally see, can acknowledge
                          (c) two or more of the attesting witnesses subscribe the will in the presence of the
                          testator.
                          Note: Theoretically the witnesses don’t have to sign at the same time – doesn’t say in
                          presence of each other.


i. Presence of Witnesses:
Chesline v. Hermiston (Ont) – Testator – asked store clerk to witness income tax return – also grabbed a neighbouring
businessman who was in a hurry – he signed and moved towards the door, the testator then signed and then the second
witness.
Nature of doc not explained and not seeing signature – not sufficient --- the signature of the testator must be written or
acknowledged by the testator in the actual visual presence of both witnesses together b/f either can attest.
Sisson v. Park Street Baptist Church (Ontario) – A will signed by only one witness valid – for they forgot to sign –
amounted to “substantial compliance” – even though Ont does not have substantial compliance legislation, so truly
Wrong.

ii. Notes:
- Witnesses need not see what the testator wrote – apply omnia praesumuntur rite esse acta and presume that he wrote
his signature. But must see him write something.
- Testator must also see the witnesses sign – or at least have been able to, if they looked. If sign behind testator’s back –
then invalid (Re Wozciechowiecz).
- Consciousness – testatrix gave instructions for a will, but in and out of consciousness, only signed part and fell
unconscious, they quickly signed, but did not regain consciousness. (Re Chalcraft)

iii. Acknowledgment:
                                                               8
If testator signs out of presence of witnesses, then acknowledge the signature in presence of both witnesses at the same
time.
Re Gunstan – Witnesses did not know what doc was, or see her signature
Held: Not enough to say “this is my will” or “signature is inside”
Note: Don’t need to actually see it, as long as had the opportunity to see it.

Re Colling – Witnesses – patient in next bed and a nurse; the nurse had to leave while testator only half written
signature. The other witness then attested and subscribed in presence of testator, then nurse returned, and both
testator/witness acknowledged their signature to her, she then signed.
Held: Not valid – has to follow a certain order – Even if consider acknowledgement - the patient signed before
acknowledgement, the nurse signed after. Needed acknowledgement – then signatures of both.

2. Holograph Will:
SLRA – Holograph Will
s.6     Holograph Will        6. A testator may make a valid will wholly by his or her own handwriting and signature,
                              without formality, and without the presence, attestation or signature of a witness.
s.7(3)   Complying with       (3)The generality of subsection (1) is not restricted by the enumeration of circumstances set
         signature at end     out in subsection (2), but a signature in conformity with section 4, 5 or 6 or this section does
                              not give effect to,
                              (a) a disposition or direction that is underneath the signature or that follows the signature; or
                              (b) a disposition or direction inserted after the signature was made.


A Holograph will – is one written entirely in the testator’s own handwriting and signed by him or her. It does not require
attestation.

Usual Problems with Holograph Wills:
    - Often testator does not deal with all assets
    - Often does not deal with residue
    - Interpretation of ambiguities “all cash on hand” “all money’s on deposit” cause litigation
Requirements:
- Holographic paper is not testamentary unless it contains a “deliberate or fixed and final intention” as to the disposal of
property upon death (Whyte case(1882))
- Essential elements for a good will (Feeney case):
         it must be intended to have disposing effect
         intended to take effect after death and be entirely dependent on death for its operation
         intended to be revocable and be in fact revocable
         be executed as required by the wills legislation of the province

Caule v Brophy (1993) Newfoundland
Can a letter be a holograph will?  yes if it contains a deliberate or fixed and final intention as to the disposition of
property
T wrote letter to his lawyer wholly in his handwriting and signed at the end. Said ”I wish to write a new will. It is to be as
follows. . .”
Evidence:
- The lawyer met with the deceased and the lawyer understood that the letter represented what the testator wanted and
the lawyer was instructed to put it into legal format - no question that this was the fixed and final intention of the deceased
- The deceased intended the letter to have a disposing effect and did not intend the letter to be simply a guide or
statement for a future will; deceased signed at the end of the letter in the manner one would expect to find a holograph
signed; deceased had the fixed and final intention to dispose of his property
Held: Valid Holograph

Bennett v. Gray
Testatrix wished to make a new will – sent a letter to her solicitor – pretty detailed. But could not decide on an executor, or
residue, then changed one of the gifts. Then made a gift of estate and died.
Issue: Was letter a holograph will?
Trial: Yes
CofA: No
Rationale: To be a holograh will must contain – a deliberate or fixed and final expression of intention. Letter was not
written animo testandi.

                                                               9
Proff’s Example – Chinese Restaurant
Type written/ with one witness, niece and signed by testator.
Told to try to probate – ended up settling.

Printed Wills:
Difficulty – not entirely in his or her own handwriting
Re Forest – Filled in in his handwriting all the blanks in the body of a printed will form – except the blanks in the
attestation clause and signed.
Trial – not probated, note entirely in own handwriting
CofA – dismissed
Sunrise Gospel Hour v. Twiss – if stripped of printed parts still formed a complete expression of the testator’s intentions
- the will is valid.
Did not dispose of residue – most important part of intent. Fear that any printed form would be admitted.

At the End:
Re Clarke – Using printed will form – stated name at top – but no where else.
In other jurisdictions the position of the signature in a holograph will has been held not to be a bar to the document being
valid – but s.7(3) SLRA – signature location formalities apply to holograph – any thing after not included.
Held: Refused probate – did not accept signature at all.

Holograph Codicil:
A holograph codicil is apt to amend a formal will, same statutory requirements apply to codicils, needs to be imperative
and manifest a present intention to change the will – the expression of a future intention is not enough.
Re Kinahan (1981) – Although a holograph codicil may amend a formal will – needs present intention – Will found in
envelope – on the back says “I must change this will, leave out 500 for grandchildren”.
Court held this writing was not a codicil – showed a future intention.
(Really could say was future intention – but result leave out for grandchildren)

3. Privileged Will:
SLRA - Privileged Will
s.5     Will of member       5(1) A person who is,
        of forces on         (a) a member of the Canadian Forces placed on active service under the National Defence
        active service       Act (Canada);
                             (b) a member of any other naval, land or air force while on active service; or
                             (c) a sailor when at sea or in the course of a voyage,
                             may make a will by a writing signed by him or her or by some other person in his or her
                             presence and by his or her direction without any further formality or any requirement of the
                             presence of or attestation or signature by a witness.
                             Certificate of active service:
                             (2) For the purposes of this section, a certificate purporting to be signed by or on behalf of an
                             officer having custody of the records certifying that he or she has custody of the records of
                             the force in which a person was serving at the time the will was made, setting out that the
                             person was on active service at that time, is proof, in the absence of evidence to the contrary,
                             of that fact.
                             Where certificate not available:
                             (3) For the purposes of this section, if a certificate under subsection (2) is not available, a
                             member of a naval, land or air force is deemed to be on active service after he or she has
                             taken steps under the orders of a superior officer preparatory to serving with or being
                             attached to or seconded to a component of such a force that has been placed on active
                             service.

Re Booth – On his way to Egypt wrote following will – “I leave everything I have to my wife absolutely, I hope she will
have regard to my sister Mary” – locked in a closet, destroyed by fire – nothing in conduct proof to deprive the will of
operation (must revoke by formal act, or marriage will revoke too).
Held: Probated, on proof of content

Re Jones – The nature of the duties determined whether a soldier was on active military service; Can be w/i county
against non organized – British Army in Ireland – gave oral will after shot – probated.

Note: s.8 allows a minor to make such a will

                                                             10
4. International Will:
SLRA - International Will
s.42 Adopts                   Intention was to have a will that would be universally recognized. Few signators.
        Convention            Similar to regular will, with addition of
                                        rd
                                  - 3 person - an “authorized person” who is Member of Law Society


                                                 Incorporation by Reference

A doctrine under which existing, unattested docs may be incorporated into a will.
Three requirements (Thomas Estate v. Gray):
    1. Unattested doc must be in existence when the will is executed (onus on seeking incorp)
    2. The will must refer to the doc as an existing doc
    3. The will must describe the doc with sufficient certainty so that it can be identified.

* May use expression of ‘wishes’ to get around – It is my wish that my trustees are to distribute certain personal effects in
accordance with a memo which I may leave – not legally binding – can change it, put in tonnes of detail, and sometimes
don’t want details of personal effects made public (neighbours or customes revenue)

In The Goods of Smart (1902)
Testatrix gave all furniture, books, clothes ect to cousin for life then to friends will designate in a memo found with this will.
Book made in 1889, in 1900 made a codicil – but did not refer to book.
When codicil has effect of “re-publishing” the will as at the date of the codicil.
But still the words in the will are in future tense.

Holograph Wills – Generally any doc can be incorporated into a will, whether made by testator or another person, but if a
holograph must be ‘wholly’ in testator’s own handwriting.
Re Dixon-Marsden Estate – Will consisted of a typewritten, single sheet of paper – contained dispositive provisions and
appointment of an executor. Initialled each para and written the date in the top by hand – then “the above-mentioned are
in short those to whom my estate is left.” Then signature. – Executrix arguing that handwritten holograph – incorporating
the rest.
Held: Not valid holograph will with an incorporation of non-holograph
Should not be viewed as two docs, though doctrine of incorp does not require two sheets of paper. The one doc is not
wholly in the handwriting of the testator – and handwritten don’t dispose of anything. Further, the will would need to be
such that it could be probated even w/o other encorp doc.
Holograph wills must be entirely in handwriting of testator – can not incorp typed.




                                                               11
                                                              Capacity
Two Types:
     1. Age Requirement – Ontario, Age of Majority
          Exceptions – SLRA s.8 –
8(1) A will made by a person who is under the age of eighteen years is not valid unless at the time of making the will the
person,
(a) is or has been married;
(b) is contemplating marriage and the will states that it is made in contemplation of marriage to a named person except
that such a will is not valid unless and until the marriage to the named person takes place;
(c) is a member of a component of the Canadian Forces,
          (i) that is referred to in the National Defence Act (Canada) as a regular force, or
          (ii) while placed on active service under the National Defence Act (Canada); or
(d) is a sailor and at sea or in the course of a voyage.
(3) A person who has made a will under subsection (1) may, while under the age of eighteen years, revoke the will.

      2. Mental Capacity
Still subjective – a person ought to be able to sufficiently comprehend issues related to a will – appreciate the nature of
their own assets and liabilities – fairly high degree of intelligence.

TEST:
* Testator understands the nature and extent of his or her property, the moral claims of his or her dependants and the
reasons for excluding any, with no disorder of the mind – general or delusional do not impact on making of the will or
dispositions within it.

Banks v. Goodfellow –
Man from asylum, aversion to Featherstone Alexander – died, thought he was being pursued plus devils and evils spirits
ect.
a. That a testator shall understand the nature of the act and its effects;
b. shall understand the extent of the property of which he is disposing;
(a & b = Knowledge and adds Approval, of contents of the will – so that not just signing blindly, Russel v. Fraser – no
residue clause, unaware of how large)
c. comprehend and appreciate the claims he/she ought to give effect to (moral obligations, ie. Spouse, Children) and view
to the latter object;
d. no disorder which is poisoning his affections, pervert sense or right or exercise of natural faculties or no insane delusion
influence his will to dispose of property which if sane would not be made.

If they have the necessary capacity according to Banks and Harwood, then it does no matter that others regard the
exclusion of someone who had a moral claim upon the testator’s bounty as unjust or eccentric (Boughton v. Knight).

Date at which Capacity is Required: At the time of the will signing
Exception:
Parker v. Felgate (1883, English Case)
Testatrix gave complete instructions to her solicitor, before he could prepare she lapsed into a coma. She was roused
from her coma – asked if will signed by someone else – said Yes. (Jury decision)
Enough for her to understand that she was executing the willl for which she had given instruction, did not need to
understand each clause.
 Re Bradshaw Estate (1988, Canadian version)
Elderly gentleman – asked for codicil to be prepared weeks before, summoned on the day he died. Nodded in agreement
– made some marks. Evidence of solicitor and various witnesses that he was aware of his surroundings and understood
that he was signing what he had previously instructed. Capacity at the instructions and signing.

Onus of Proof:
Balance of probabilities
Onus of proving mental capacity lies on those supporting the will (propounders)
There is a rebuttable presumption that testor had testamentary capacity, but not much needs to be shown to rebut the
presumption, and then the propounders of will must prove testamentary capacity.

But, where undue influence – then it’s the person alleging undue influence, who has the onus.
Relationship with Undue Influence – The greater the extent of mental incapacity, more likely it is that there is undue
influence; the weaker the case for mental incapacity the more difficult for undue influence.


                                                              12
Three categories of people who comment on testators capacity:
    1. Doctor/Medical professionals
    2. Lawyer involved in preparing the will: Is it w/i our rights to refuse
       Hall v. Fredrick – Case out of Bellville – Terminally ill patient wants to do the will – lawyer bought kit – patient in
       and out of consciousness – in course of awake moments got limited instruction. The lawyer could not draw up a
       will – then he dies that day.
       Sued lawyer for negligence – Trial: win ---- Contrary to everything, saying it is not the job of lawyer to access
       mental capacity – just draw up the will – ludicrous, promotes litigation
       CofA: Reverses – lawyer can refuse to draw up a will.
       * As long as lawyer took reasonable steps to try to form an opinion – need to keep notes, aska bout assets and
       liabilities and let a beneficiary stay in the room throughout.
       If want to ensure – use Capacity Accessor or ask Dr. for a note (using Banks v. Goodfellows)
    3. Friends/Family
       * Courts do not necessarily prefer medical over lay witnesses

General Insanity
Leger v. Poirier (SCC) – Testatrix - 79 yrs, widowed early, from 1918 – 1936 operated the business, then transferred to
son.1939 – She makes a will & Sons family moves in. 1941 Health deteriorating, hired a grand-niece to look after mother.
Son isolated mother, she didn’t even want them living with her, some coercion.
Before death son arranged lawyer to prepare will – Grand niece as witness – saw her as losing memory, initiative,
conversation, repetitious tendencies – no common sense at the time. Hector suggest gifts, she repeats. Did not utter a
word or sign. Solicitor as witness – said in a “feeble condition”
SCC Held: Such a doubt that will could not be upheld. Onus of showing that of a “free and capable” was not met. Need to
be able to comprehend, on its own initiative, the essential elements of will-making, property, objects, just claims,
revocation of previous ect. Not enough to repeat a tutored formula or make a rationale response – must be a “power to
hold the essential field of the mind in some degree of appreciation as a whole.”
TEST: Use Banks v. Goodfellows plus “free and capable”

Re Davis – Widow in 60s living with brother and sister – ill health, forgetful (running taps and fire) as well as a complete
personality change – from modest to being in love with a bum, “Ted’s castle on the hill.” Had made four previous wills
dividing her estate – the last with a different solicitor, she left entire estate to a non-existent cancer society. (Seive Pre – if
charitable purpose, then apply to similar charity.)
Trial – Refused to probate. Gave little weight to physician/solicitor – preferred the lay witnesses.
C of A – Dismissed the appeal.
Evidence of Laymen: “whether of sound and disposing mind, raises a practical question, which so far at least as evidence
based on observation and experience is concerned, as contrasted with evidence based on pathological findings, may be
answered by laymen of good sense,
In regards to the onus to prove validity of will: “where the will constitutes a significant departure of all prior dispositions,
coupled with a history of progressive impairment of mental capacity, the burden of proof is considerably increased” –
burden of proof is on the balance of probabilities – statement doesn’t mean that burden is not on balance of probabilities –
but means that in order to meet standard of balance of probabilities to prove mental capacity need significant evidence

Re Pommerehnke (1979) – Woman suffering from depression, killed herself in house fire – left note in her purse on a
fence post – valid holograph will giving money to nieces. Whether it is invalid due to incapacity?

Insane Delusions
An insane delusion is an irrational belief in a state of facts which are not true
Banks –
Held: Was competent, valid will
Theoretically a person could be generally sane and satisfy the test, but suffer from periodic moments of
insanity/hallucinations
Evidence that Banks managed his money and affairs competently – evidence from lay people that capable when signed
his will. – Found that his delusions did not have any influence on the provisions of his will – will was rational.
Ratio: So long as the insane delusions do not impact the dispositions in the will

O’Neil v. Royal Trust (1946)
Husband of testatrix died – leaving her with the power to appoint the residue, and requesting it go to his sister in life,
remainder to grandnieces.
Originally respected his wishes in her will, then changed to her niece and nephew, then changed back to husbands
wishes (the same year she admitted herself to a sanatorium.)
Evidence:
                                                                13
    -   appeared clear and alert - knew details of husbands estate and earlier wills - felt guilty about keeping money from
        husband
      - had peculiarities and hallucinations – year after last will incompetent to manage affairs
Held:
Trial – refused probate
CofA – reversed, allowed probate
SCC – upheld the will as a valid will
Reasons:
Just because a person may suffer from certain hallucinations and delusions, this may not in itself invalidate a will, unless
those hallucinations/delusions have brought about the will or an “actual an impelling influence” in the making of the
will.
Possible that person may seem rational, but be motivated by delusions - Where there is evidence of insane delusions, it is
necessary to “go below the surface” to determine if that will is the product of a “free and capable testator”.
Here – no connection between hallucinations and motives/reasons for will.

Skinner v. Farquharson (1902, SCC) – Wife’s claim that husbands insane delusion that mother and son having
relationship, made him leave less to them. Though they did get legacies and she was co-executrix.
Held: SCC valid will
Reasons: Based on solicitors evidence and the will itself, which was rational and just.

Montreal Trust Co v. McKay
Delusions may invalidate, even if provisions are reasonable. While made provision for wife and children, he was a
paranoid schizophrenic and delusions concerning wife and children had altered will.
Held: Lacking capacity, refused probate.

Royal Trust Co. v. Ford
If there is in fact no “delusion” but merely a suspicion or doubt, or even an indifference about the matter, the will should be
admitted to probate.
Testator doubted his sons legitimacy – but at the time father and son were strangers. Whether indifference to son or doubt
of legitimacy – not sufficient to establish a delusion, which motivated will.



                                                      Undue Influence
Arises not when just societal norms, family members ect, rather when that influence gets to the point of supplanting or
substituting what a person would do otherwise. Law does not care what ‘motivates’ a testator to do something, so long as
the motivation is his own – relates to elements of voluntariness.

If there are allegations of undue influence, it is the person alleging that has the onus of proof
 - generally will plead no mental capacity, no knowledge and understanding, and undue influence;
However – undue influence is not necessarily related to testamentary capacity, a person may have the necessary
capacity to make a will, but, because his or her volition was overborne by another.

Costs:
Originally paid out of estate, however, courts have begun to scrutinize the strength of individual cases and if without merit
and substance, will penalize parties from commencing or prolonging litigation - do not have to prove, but need to
substantiate claim or potentially face cost penalties
Fieldhouse v. National Trust (1999) Ont. Ct. J. – Had reason regarding capacity but not undue influence, not to come
out of estate.

More than Influence:
Hall v. Hall: “To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to
the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like –
these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character,
whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgement is a
species of restraint under which no valid will can be made.”
Wingrove v. Wingrove: “To be undue influence in the eye of the law there must be – to sum it up in a word – coercion. It
must not be a case in which a person has been induced by means such as I have suggested to you to come to a
conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded
or induced by considerations which you may condemn, really and truly to intend to give his property to another, though
                                                              14
you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the
person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue
influence.”


Mayrand v. Dussault (1907)
Testator suffering from a ‘wasting’ disease – brother suggested disease caused by testator’s wife in preparing his food. As
a result testator revoked his former will, which left everything to wife and changed to brother.
Held: Second will not valid because of brother’s undue influence.
Re Marsh Estate; Fryer v. Harris (1991)
Testarix devised principal asset – House – to Rev and wife, residue to sister. Then gave P of A to Frank later – when
learned of devise he told testatrix he didn’t like it and that should give them P of A aswell. Testatrix knew she needed
Frank – and prepared a codicil – because Frank had been good to her.
Held: Trial – Frank exerted undue influence; C of A – dismissed
Rationale: Had testamentary capacity. And that Frank exerted influence – and threatened to withdraw assistance –
coercion which resulted in undue influence.

Pocock v. Pocock (1950)
Undue Influence also applies when a person has poisoned the mind of the testator against a potential beneficiary (even
though really fraud). Idea that if relative alleges against another they will get a bigger piece of the pie --- need to show the
testator believed the accusations and acted upon them.

Onus of Proof and Suspicious Circumstances:
The onus of proving capacity is on propounder of the will.
Suspicious Circumstances:
Often a will prepared, or initiated by a person who takes a benefit under it. While gift may be proper, they arose suspicion
of the court. Suspicion itself does not invalidate a will – but may bring into question undue influence or capacity issues.
Suspicion – when beneficiary witnesses, regarding circumstances, whether knew content.

Barry v. Butlin
76 yr old gave solicitor ¼ of the estate, gift to butler and residue to a close friend who was named executor. Only son
attacked will.
Found: Nothing done secretly, no evidence of attempts to influence. Other factors outweighed the suspicious
circumstances.
Held: When suspicion arises Court ought to be “vigilant and jealous in examining the evidence” and not to pronounce in
favour of the will unless the suspicion is removed.
* Suggests the onus is on the proponder to disprove suspicion

Vout v. Hay (1995)
Testator murdered at 81, Vout a 29 woman-friend. Left will in which she was executor and beneficiary. Challenged by Hay
family – wanted to use a 20 yr old will – gave to brother and sister.
New will prepared in Vout’s parents’ lawyers office --- direction through a secretary from Vout, was present at signing
“reassuring him that its what he wanted” and she paid the bill.
So Active Role + Beneficiary = suspicious (Also suspected of murder – gave a lot of contradicting evidence.)
But testator described as “eccentric, but alert , smart, independent, determined, and not easily influenced.”
Held:
Trial – Noted suspicious circumstances, but held that the testator did exactly what he intended and no undue influence.
C of A – ordered a new trial to resolve discrepancies in evidence
SCC: Restored trial decision
SCC Rationale:
If a party writes or prepares a will on which he takes a benefit, this ought to excite the suspicion of the court to examine
the evidence and to not pronounce on the will unless the suspicion is removed
Does suspicion increase std of proof --- no, Requires a civil std of proof on a balance of probabilities, but the extent of the
proof required is proportionate to the gravity of suspicion which varies.
Suspicion circumstances where:
     1. circumstances surrounding the preparation of the will
     2. circumstances relating to the capacity of the testator
     3. circumstances showing that the free will of the testator was overborne by acts of coercion or fraud.
Onus:
- Propounder of will has legal burden related to proving execution, knowledge and approval, capacity
- Rebuttable presumption that where the will was duly executed with the requisite formalities it is valid
                                                                15
BUT where suspicious circumstances are present, the presumption is spent and the propounder resumes the legal burden
of proving knowledge and approval or capacity.
HOWEVER where circumstances relate to undue influence or fraud are to be treated as an affirmative defence to be
raised by those attacking the will
* Though proving knowledge and approval and capacity does a long way to disprove undue influence.

Banton v. Banton (1998)
86yr old in retirement home married 31 yr waitress Muna Yassin – then had will and power of attorney drafted. Died 3 yrs
later everything left to her.
Held: Will invalid, but marriage valid (lower)
Rationale: Able to appreciate nature of testamentary act and assets, but no longer had ability to understand and
appreciate the moral claims of his children because of a delusion due to a mental disorder activated by Muna. And Muna
failed to meet the burden of proving testamentary capacity, and exercised undue influence.
Due to marriage – prior will revoked by testator’s marriage – and shared on intestacy.


                                                               Fraud
If there is fraud – the will or provision will be struck down. However, it must be shown that the will or the disposition would
not have been made apart from the fraud. For example where beneficiary goes through a form of marriage with testator
while already married. Gift will stand if that person was not a party to the fraud.



                                                         Mistake
Must know and approve of contents – so any part of the will may be refused probate if it was inserted by mistake. But
Court only has power to delete passages, not substitute or add words. Can only delete where:
   a. when there is a patent mistake on the face of the will
   b. when a drafting error has occurred; and
   c. when the testator has executed the wrong instrument

i. Patent Mistakes – one which appears from the will itself or from evidence of circumstances showing that testator made
an error about an existing fact. If it can be show that a fact made in reliance of the mistake then gift will not stand.
Re Wright – Testator stated in his will that he had no relatives and was therefore leaving his estate to X, a stranger. But
had a living wife and daughter in England. Will held to be inoperative for thought they were dead and would have
benefited them.

ii. Drafting Errors –
In the Goods of Duane (1800s)
Drafter had inserted the name of one of the testator’s daughter’s twice – was a able to delete the second, said “and my
other daughter”.
Guardhouse v. Blackburn (1866) – Testatrix made a codicil mistakenly saying “all legacies therein and (referring to will)”
– but could not expunged because the will read over to the testatrix.
Re Morris - Rules regarding formalism much diminished – the fact is that words inserted inadvertently, the fact that read
over is irrelevant.
Rhodes v. Rhodes (1882) – Lawyer inserted wording “and from and after the decease of my wife without leaving issue
our said marriage” without instruction – result would be that daughter would have to wait until testator’s wife died. If
deletion or words alter sense of what remains – can not make the dead man execute a new instrument. Take a risk if you
trust a lawyer. But able to vest possession immediately.
Re Morris (1971) – Testatrix used roman numerals – clause 7(iv) gave Miss Hurdewll 2000 pounds. Then testatrix wished
to change the gift – wrote solicitor to change 3 and 7(iv) --- but he said 3 and 7. The solicitor admitted his error.
Held: Deleted 7 altogether allowed the rest of the will.
Rationale: To say that she did know and approve of contents is repugnant. But can not add. Discusses a developing trend
that is a more realistic approach. Guardhouse – laid down unequivocal rule that if testator capable, read over to him and
execute – then knew and approved. But started to be questioned – particularly in fraud cases, then also in mistake.
Principle – An intending testator cannot delegate to another the task of deciding how his property shall be willed. But can
entrust someone to draft a will. Scope of draftsman’s authority is to carry intentions into will.
Here – the words “clause 7” instead of “clause 7 (iv)” were clerical, the solicitor’s mind was never applied to it. What he did
was outside his authority. So deleted 7 all together.

iii. Signed the wrong document


                                                              16
Re Malichen Estate (1994) Ont. Ct. J. - Testator and wife instructed solicitor to draw up wills for them – each will had
identical provisions – except in the wife’s will her personal property should go to her daughter
Problem: husband’s will had wife’s signature and wife’s will had husband’s signature - only noticed this when husband
died and pulled out husband’s will
Tried to probate the wife’s will with husband’s signature (because had his signature on it)
Held: “There does not seem to be anything in the Ontario Succession Law Reform Act or the Estates Act which prohibits
the court from following these decisions in correcting the will and admitting into probate in the form obviously intended by
the testator.”
Re Brander (1952) SC BC: similar case as above – husband and wife had their lawyer prepare a will for each of them,
naming each other executor and sole beneficiary – by mistake signed each other’s will – husband died – wife sought to
probate the will signed by him with the deletion of her husband’s name and its substitution by her name where necessary
 court: admitted will into probate with the alterations
NOTE: the alterations in Re Brander and Re Malichen Estate seem sensible, but it is contrary to the law – court of
probate may strike out errors but may not substitute new words (Re Morris)




                                                             17
                                                    Testamentary Gifts
Only area where distinction b/w real property and personal property still pertinent.
Historically three types of testamentary gifts:
        1. Devises gifts of real property (realty)
        2. Bequestsgifts of personalty (non-real estate assets)
        3. Legaciesgifts of money or money equivalents

Four broad groups - *just need to know there are categories of gifts if there are insufficient assets to pay off all the debts
or all gifts provided for in will:
    1. Residuary
    2. Specific
    3. Demonstrative
    4. General and Pecuniary

Conditional Gifts
Re Millar (1938) SCC
Preamble to will saying “uncommon and capricious” no dependants - left mischievous clauses
Final open to litigation – Baby Derby – Residue “at the expiration of ten years from my death to the Mother who has given
birth in Toronto to the greatest number of children. – Four moms won.
Next of kin contested the will – contrary to public policy.
Two conditions in order to strike down for public policy:
     1. That the court is striking it down in the interest of the safety of the state – for economic/social well being of people
          as a whole.
     2. Court should only interfere in clear cases where the harm to the public is substantially incontestable.
Held: Dismissed – gift upheld – second condition not satisfied – harm to public not clearly substantially incontestable.

Sam Weir also – left 35 000 to give to LSUC in trust to hold to pay income earned to student graduating from bar with the
lowest marks – saying “many lawyers successful in keeping lack of knowledge in the dark. Refused the gift.


1. Abatement – pro-rata (proportional) reduction of amounts quantities of testamentary gifts when the
estate is insufficient to pay the debts and gifts in full
    - Debts paid off top
    - Then claims against the estate – FLA
    - Gifts in the will --- seen as voluntary
Sets up priority of gifts - a list
Take from:
         1. residue
         2. general legacies
         3. specific and demonstrative legacies
         4. other devises
*Everytime get into a category everyone reduced proportionally.

s.5    Estates Administration Act:     Subject to section 32 of the Succession Law Reform Act, the real and personal
       Payment of debts out of         property of a deceased person comprised in a residuary devise or bequest, except
       residuary estate                so far as a contrary intention appears from the person's will or any codicil thereto, is
                                       applicable rateably, according to their respective values, to the payment of his or her
                                       debts, funeral and testamentary expenses and the cost and expenses of
                                       administration.
                                       * Term “residue” meaning balance of estate after all other dispositions.

If in fear of abatement can specify in the will what order gifts are to abate. if the will specifically provided for another
mechanism to remedy abatement; then follow the will’s instructions for priority:
Re Jost – the testator had a clause stating that no bequests to be paid for three years after demise, except half yearly to
nephew. Court held that nephew’s trust fund thereby received priority.
Lindsay v. Waldbrook (Cof A, 1897) – Directed the selling of farm - “first out of the said proceeds set apart a sum of
2000 for grandson’s education and maintenance” then detailed four other legacies.
Whether first had priority over others or whether all should abate proportionally.
Trial: Grandson’s took priority
CofA:
Held: Should abate – proportionally
                                                              18
Rationale: Well settled that words “immediately” or “in the first place” or “out of the first moneys” is NO evidence of an
intention to give priority. All bequests stand on equal footing and lies upon those who assert the contrary to prove it.
Assume testator believes sufficient funds to satisfy all bequests.

A legacy to the executors “for their trouble” although a general legacy has priority.

No Marshalling of Assets
Re Watt (1958) - The general pecuniary legatees had no right to marshal as against the specific devisees, so that the
latter’s interest did not abate


2. Ademption – When property which is the subject matter of a figt, although in existence at the date of the will is no
longer part of testators estate on death. The gift adeems and the beneficiary gets nothing. (Only had a spes succissionis).
Depends how you describe something in a will:
I leave my car to my nephew; Or I leave my Rolls Royce to my nephew. Less specific, the less likely to adeem.

2 kinds of exceptions to ademption:
1. Statutory exception
2. Common law exception – equitable tool called doctrine of tracing

Date from which will speaks:
Common law – specific gift only if owned by testator at the date of the will. After acquired property went into residue.
Now under Statute: if the will describes property; then will speaks of the property which matches that description
immediately before death; unless there is a contrary intention expressed in the will

s.22      Date from which      s.22 Except when a contrary intention appears by the will, a will speaks and takes effect as
SLRA      will speaks:         if it had been made immediately before the death of the testator with respect to
                               the property of the testator; and
                                             b) the right, chose in action, equitable estate or interest, right to insurance
                                             proceeds or compensation , or mortgage, charge or other security interest of the
                                             testator under subsection 20(2).
                               * If a gift is made of specific item, which is incapable of increase or decrease, such as a
                               horse, the courts regard that as evincing a contrary intention to take the gift out of s. 22 of
                               SLRA

Re Hunter (1975)
The testatrix devised and bequeathed her house and contents to certain beneficiaries. She died in a fire, which destroyed
these assets. Whether beneficiaries got insurance.
Held: Beneficiaries do not get insurance money’s
Rationale:
If simultaneously with the testator’s death, then not vesting in them, and goes to personal rep to form part of the general
estate (to pay debts ect, then residue) and not to the disappointed legatees
* Would be decided differently today – s.20(2)(b) SLRA Right to receive proceeds of insurance, subject to devise/bequest
whether damage before or after making the will.

s.20(2)   Rights when          (2) Except when a contrary intention appears by the will, where a testator at the time of his
          property devised     or her death,
                               (a) has a right, chose in action or equitable estate or interest that was created by a contract
                               respecting a conveyance of, or other act relating to, property that was the subject of a
                               devise or bequest, made before or after the making of a will;
                               Note: sold house but not conveyed it yet – thus have equitable interest in house – equitable
                               interest would pass to beneficiary
                               (b) has a right to receive the proceeds of a policy of insurance covering loss of or damage
                               to property that was the subject of a devise or bequest, whether the loss or damage
                               occurred before or after the making of the will;
                               Note: Re Hunter facts – beneficiaries would receive insurance policy
                               (c) has a right to receive compensation for the expropriation of property that was the
                               subject of a devise or bequest, whether the expropriation occurred before or after the
                               making of the will; or
                               Note: left house to someone but it was expropriated – then beneficiary to that gift under the
                               will is entitled to receive the expropriation money
                                                              19
                               (d) has a mortgage, charge or other security interest in property that was the subject of a
                               devise or bequest, taken by the testator on the sale of such property, whether such
                               mortgage, charge or other security interest was taken before or after the making of the will,
                               the devisee or donee of that property takes the right, chose in action, equitable estate or
                               interest, right to insurance proceeds or compensation, or mortgage, charge or other
                               security interest of the testator.
                               Note: someone purchased the house that was subject of bequest; but didn’t pay cash but is
                               paid out by mortgage to vendor (testator) – beneficiary gets mortgage proceeds

Also: SDA s.35.1 – provides that a guardian and an attorney of property shall not, subject to certain exceptions, dispose of
property that they know to be subject to a specific testamentary gift in the incapable person’s will.
s.36(1) ademption does not apply to property that is subject of specific testamentary gift and guardian or attorney
disposes of it.

Re Rutherford – Devised his “house and premises on Merton Street” to his widow for life then to children living. After will
acquired addition adjacent feet. Whether part of property or becomes part of residue.
Held: The whole property passes as “house”
Rationale:
Unless from the will itself can see that testator did not intend after-acquired property to pass, it must be read as though he
had executed it immediately before his death, though what spoken of at date of the will is what is given. But if thing given
remains, just added to the whole thing passes.
Use of temporal words

Re Forbes (1956)
Testator bought house with Mrs. P on Dawson Street. Will – conveying premises where I now reside on Dawson Street.
And signed a release for all claims against the other. Then Testator bought another house where he lived until death.
Trial: She got second house where he was living at time of death.
C of A:
Held: Allowed appeal
Rationale: “now” an essential part of the description of the property. Thinking of date of execution. In another clause says
“at the date of my decease”.

Re Butchers (1970) High Ct. Justice
I leave X 31 Beckwood Road – the testator did not own this property at date of will or subsequent to the will until the time
of death; however the testator did own 32 and 34 Beckwood Rd
Held: gift adeemed (failed)
the court is entitled to put themselves in the “testator’s chair” when several assets may answer the description used in the
will in order to determine the intention of testator – even if 31 Beckwood Rd. was never owned by testator; but mistaken to
give 32 or 34 – court still doesn’t know which one the testator intended.

Contrary Intention
Re Bird (1942)
Testarix bought cottage on 14 Mitchell Ave (left to son) – demolished and replaced with two semi-detached homes. Then
made a codicil (unattested) giving both homes to son.
Held: Found contrary intention
Rationale: Even under changed condition satisfied the description in the will. A specific devise is not cut down by an
alteration in the property made after the date of the will.
Contrary intention in that she used 14 Mitchell to refer to the whole lot. She designated one no. 16, not the municipality.
Dissent: Found no contrary intention expressed in the will – plain that language only covered No. 14, codicil shows that
she considered both separate – but did not follow through with the attesting.

2. Tracing - very narrow principle. In certain circumstances, if a particular property has been converted into another form,
beneficiary may have a right to claim. Case law suggests only in circumstance:
Where only the form not the subject matter of the gift changes.
Change in Name and Form
Ex. Bequests 100 shares in ABC, then ABC reorganizes and splits stock two for one, so testator then owned 200 shares.
Or sold to Xerox, and it was those that were owned on death.
Ex. In will X leave the assets of Grocery Business to Y, but transferred ownership into a corporation – X Co. When X dies
X no longer owns grocery business technically just owns shares, owner is X Co.

Re Stevens
                                                             20
Held that the procees of sale of real property which the testatrix had bequeathed, could no longer be traced when they
were paid into a bank account which already had a credit balance. Such a commingling was said to stop the right to trace
– involved such a change in the thing bequeathed that there is no longer anything upon which the gift can act.

Re Cudeck (1977)
The testator left Term Deposit to friend, but cashed it in and bought new ones several times – up to $40 000. Made a
codicil giving this $40 000. Then bought another new one, then removed it. Left 37 thousand dollar bills for friend with an
unattested note.
Trial: Friend entitled to 36 000.
C of A:
Held: Appeal dismissed - Could trace ‘proceeds’
Rationale: Intention set out in will plus codicil and gift does not adeem. Codicil said “to devliver to friend the proceeds of
term deposit – at any time thereafter.” Gift was proceeds of term deposits – not term deposit itself. The ‘proceeds’ did not
lose their identity by being momentarily mingles in the testators bank account. The note left with the money can be used
to identify the proceeds. Evidence that it came from term deposit.
* Since Stevens Court more willing to look at intentions.

                                             Real Property Subject to Mortgage
Common Law – If devised property subject to mortgage, assumed that mortgage paid off out of the general personal
estate. Legislation – that devisee takes property subject to the mortgage.
According to s. 32 of SLRA, unless testator expresses a contrary intention then the mortgage debt runs with the land and
thus the beneficiary in accepting gift of real estate assumes the mortgage


s.32     Property subject to      32. (1) Where a person dies possessed of, or entitled to, or under a general power of
SLRA     mortgage:                appointment by his or her will disposes of, an interest in freehold or leasehold property
                                  which, at the time of his or her death, is subject to a mortgage, and the deceased has
                                  not, by will, deed or other document, signified a contrary or other intention,
                                  (a) the interest is, as between the different persons claiming through the deceased,
                                  primarily liable for the payment or satisfaction of the mortgage debt; and
                                  (b) every part of the interest, according to its value, bears a proportionate part of the
                                  mortgage debt on the whole interest.
                                  (2) A testator does not signify a contrary or other intention within subsection (1) by,
                                  (a) a general direction for the payment of debts or of all the debts of the testator out of
                                  his or her personal estate; or
                                  (b) a charge of debts upon that estate,
                                  unless he or she further signifies that intention by words expressly or by necessary
                                  implication referring to all or some part of the mortgage debt.

*Note: only applies to real estate – if have a car loan then that debt is assumed by estate before gift is given to beneficiary

Re Hicknell; Perry v. Hicknell (1981)
Testator living Common law. By will appointed brother as executor, left house to common law wife and residue to his two
kids. No reference to mortgage – over $40 000. Mortgage fell into arrears after testator’s death. Testator took out a life
insurance policy with a $200.00 per month for 25 yrs to pay mortgage. Wife brought app to an order executor to pay the
mortgage arrears from the proceeds of the insurance policy.
Held: Dismissed application, The responsibility for mortgage payments fell on beneficiary and was not a legal obligation of
the estate.
Rationale:
s.32 provides that where a person devises his real property subject to a mortgage and the decease has not by will dead or
other document signified a contrary intention then the devisee takes the real property subject to the mortgage.
Where speaks of contrary intention in other doc – must clearly be expressed in the doc itself, not discussions with the
agent.

Rejecting a gift:
However no beneficiary can be compelled to accept a gift – may have creditors, know the gift will go to them or doesn’t
want to satisfy the legal obligations (mortgage).
But must not have taken any steps to benefit or enjoy the gift.




                                                              21
                                                Capacity of Beneficiaries

Illegitimacy
At common law child born outside of wedlock could not inherit.

Beneficiaries – Illegitimacy and Adoption
s.1         Abolishing Illegitimacy Note: At common law, child born outside of wedlock not a child, could inherit from
CLRA        Rule of parentage           no one.
                                        1. (1) Subject to subsection (2), for all purposes of the law of Ontario a person is
                                        the child of his or her natural parents and his or her status as their child is
                                        independent of whether the child is born within or outside marriage.
s.2         Exception for adopted       (2) Where an adoption order has been made, section 158 or 159 of the Child and
CLRA        children                    Family Services Act applies and the child is the child of the adopting parents as if
                                        they were the natural parents.
                                        So they can inherit from adoptive family, but lose the right to inherit from former
                                        parents, unless a will provides otherwise.
s.1(3) (4) Relationship of              Note: In this Act, and in any Will, unless contrary intention is shown in will, then
SLRA        persons born outside        any type of relationship qualifier shall be deemed to include those born outside
            marriage included           marriage
                                        (3) In this Act, and in any will unless a contrary intention is shown in the will, a
                                        reference to a person in terms of a relationship to another person determined by
                                        blood or marriage shall be deemed to include a person who comes within the
                                        description despite the fact that he or she or any other person through whom the
                                        relationship is traced was born outside marriage.
                                        (4) Subsection (3) applies in respect of wills made on or after the 31st day of
                                        March, 1978.
EAA         Obligations to make         Search for children born outside marriage
s.24        reasonable Inquiries if     24. (1) A personal representative shall make reasonable inquiries for persons
            someone born outside who may be entitled by virtue of a relationship traced through a birth outside
            marriage                    marriage.
                                        Liability of personal representative
                                        (2) A personal representative is not liable for failing to distribute property to a
                                        person who is entitled by virtue of a relationship traced through a birth outside
                                        marriage where,
                                             (a) the personal representative makes the inquiries referred to in subsection
                                             (1) and the entitlement of the person entitled was not known to the personal
                                             representative at the time of the distribution; and
                                             (b) the personal representative makes such search of the records of the
                                             Registrar General relating to parentage as is available for the existence of
                                             persons who are entitled by virtue of a relationship traced through a birth
                                             outside marriage and the search fails to disclose the existence of such a
                                             person.
                                        Saving rights
                                        (3) Nothing in the section prejudices the right of any person to follow the property,
                                        or any property representing it, into the hands of any person other than a
                                        purchaser in good faith and for value, except that where there is no presumption or
                                        court finding of the parentage of a person born outside marriage until after the
                                        death of the deceased, a person entitled by virtue of a relationship traced through
                                        the birth is entitled to follow only property that is distributed after the personal
                                        representative has actual notice of an application to establish the parentage or of
                                        the facts giving rise to a presumption of parentage.
                                        Note: although the personal representative is protected if they make the
                                        appropriate searches, the beneficiaries are not, since an illegitimate heir can trace
                                        the property into their hands. Despite s. 23(3) a bona fide purchaser for value may
                                        not be protected if for example he or she takes a deed from the beneficiaries in
                                        whom the land has vested under the EAA, because an illegitimate heir may not
                                        have joined in the deed
                                        To avoid onerous searches and spurious claims by impostors, it is common to
                                        insert a clause in wills which reverses the statutory change in status by providing
                                        that any reference to any persons or persons in terms of a consanguine or affine
                                        relationship is deemed to refer to a person or persons born inside marriage only.
                                                             22
Witnesses
s.12      Void gifts for                Bequests to witness void
SLRA      beneficiaries                 12. (1) Where a will is attested by a person to whom or to whose then spouse a
                                        beneficial devise, bequest or other disposition or appointment of or affecting
                                        property, except charges and directions for payment of debts, is thereby given or
                                        made, the devise, bequest or other disposition or appointment is void so far only
                                        as it concerns,
                                        (a) the person so attesting;
                                        (b) the spouse; or
                                        (c) a person claiming under either of them,
                                        but the person so attesting is a competent witness to prove the execution of the
                                        will or its validity or invalidity.

                                        Where will signed for testator by another person
                                        (2) Where a will is signed for the testator by another person in accordance with
                                        section 4, to whom or to whose then spouse a beneficial devise, bequest or other
                                        disposition or appointment of or affecting property, except charges and directions
                                        for payment of debts, is thereby given or made, the devise, bequest, or other
                                        disposition is void so far only as it concerns,
                                        (a) the person so signing;
                                        (b) the spouse; or
                                        (c) a person claiming under either of them,
                                        but the will is not invalid for that reason.
                                        Saving:
                                        (3): Despite anything in this section, where the Ontario Court (General Division) is
                                        satisfied that neither the person so attesting or signing for the testator nor the
                                        spouse exercised any improper or undue influence upon the testator, the devise,
                                        bequest or other disposition or appointment is not void.
                                        Supernumenary:
                                        (4) Where a will is attested by at least 2 persons who are not within subsection (1)
                                        or where no attestation is necessary, the devise, bequest or other disposition or
                                        appointment is not void under that subsection.


Re Trotter (1899)
Solicitor appointed executor, provided that services out of the estate, and solicitor attested the will. Later testator made a
codicil, solicitor did not attest, then a second, attested by solicitor.
Held: Lawyer got the gift
Rationale: Due execution of a codicil amounts to republication.
Found that:
    1. A will invalid in itself may operate a s a valid instrument when referred to and incorporated in or with a subsequent
          and validly executed codicil
    2. That a valid gift by will to a legatee is not rendered invalid by subsequent codicil
    3. Although gift to attesting beneficiary is void, such a gift may be rended effectual if republished by a codicil.
    4. Legatee must point to an instrument giving him his legacy, not attested by himself
* Trotter, the lawyer could point to such a document.

Thorpe v. Bestwick (1881)
The witness became a member of the prohibited class. Testator devised house to niece, will attested by Thorpe, then
married the niece. Thorpe not in prohibited class when devised will – so valid.

Executor Compensation
Usually not set out in will – English precluded for amounts to a gift. Ontario statutory right of compensation

Re Ray’s Will Trusts (1936)
Nun appoints ‘the abbess.’ Issue: whether the abbess took the bequest beneficially or in trust for the convent.
Three types to position in a society:
    1. a beneficial gift
    2. a gift to be used for the purposes of the society
    3. a gift to be divided equally among members.
                                                             23
Found: this was a gift to the official in respect of her office, deal with as administrator – for purpose of the convent.
The abbess at that pt also the witness – fine only receives as trustee.

Supernumerary Witnesses
When more than two witnesses attes a will – and one is a beneficiary.
Common law – seems to be that if signed qua witnesses they are precluded from taking.
Re Bravado – two witnesses who took beneficial signed after independent witnesses at request of the testator – to make
it stronger --- gift to them failed.
SLRA s.12(4) of the Ontario Act addresses:
Eg. have 3 witnesses to will and one witness benefits and other 2 don’t – then no problem if there is a gift to one of the
witnesses – i.e. no reverse onus of proving undue influence OR if no attestation necessary (e.g. holograph will) – NOTE:
can still claim undue influence – but no reverse onus

Can not compel a Beneficiary to Take a gift:
23       Disposition of  23. Except when a contrary intention appears by the will, property or an interest therein that
SLRA     property in     is comprised or intended to be comprised in a devise or bequest that fails or becomes void by
         void devise –   reason of,
         Goes into       (a) the death of the devisee or donee in the lifetime of the testator; or
         residue         (b) the devise or bequest being disclaimed or being contrary to law or otherwise incapable of
                         taking effect,
                         is included in the residuary devise or bequest, if any, contained in the will.




                                                          Homicide
Public Policy Rule – that a person cannot benefit from his or her crime
Generally Criminal Law proceeds civil – if found guilty in proceedings, then disentitled, not auto.
Could fall between the two burdens – not convicted of the crime, though factually caused the death

Hollington v. Hewthorn & Co. – English Decision
A criminal conviction is not admissible in subsequent civil proceedings. Gotta start over.

Re Charlton (1969) CofA Ontario
Held: Ordered a trial of the issue                *Charlton decided not to proceed.
Oliver Charlton, charged with murder of wife – pleaded guilty to manslaughter. Psychiatrists testified to non-insane
automatism. Wife died intestate.
Does not depend on trial or conviction – but on the fact of murder or manslaughter.
Confession - It is undoubtedly evidence of very great weight.

Demeter v. British Pacific Life Insurance (1983)
Christine Demeter killed by husband, non-capital murder. He owned three polities on her life. Wanted to know if could
recover the proceeds.
Held: No, abuse of process.
Rationale: The rule in Hollington had never been adopted in Ontario – proof of husband’s conviction could be adduced in
evidence. Given that jury trial, burden of proof ect. would be an abuse of process to re-try. Court can always exercise this
jurisdiction – where identical issues sought to be raised which have already been decided.

Re Emele
Acquitted of murdering her husband – civil trial to find out if in fact murdered him.
Held: No – “would be extremely bold for me to find the widow guilty of murder or manslaughter on affidavit evidence after
the jury had acquitted her” and held that evidence of the acquittal was admissible and should be acted on.

Limits of Disentitlement
Re Gore (1972)
Joseph Gore killed wife, Ruth Ann and daughter’s Christine and Laurie, then himself.
Joseph owned two contracts of life insurance on his life – beneficiary being his wife.
Mother of wife wanted to disqualify other parents.
Held:
Wifes – goes to husband/stopped due to public policy – so to the girls.
Then girls die – to husband/stopped due to public policy.
                                                               24
Laurie is last before father – hers would go out on intestatacy – to surviving grandparents.
Father last to die.
Re House – can not benefit from crime, but does not forfit right in house already enjoyed. So have a tenancy in common
– ½ to Joseph’s estate and ½ to Ruth Ann’s.
Re Policies – she, beneficiary predeceased – as owner of policies he had rights to them, his estate entitled to the
proceeds of the policies.
Result – Estate of father = his parents/ Estate of mother = through daughters split 1/3 to grandparents.

Nature of the Crime
Most Anglo-Canadian jurisprudence suggests that it does not matter whether the killing was intentional or unintentional
because the public policy rule insists that a person who kills another shall not benefit as a result. All from intentional killing
cases – dicta only.
But a number of insurance cases which hold that the driver of a car, held guilty of manslaughter, can nevertheless recover
on a contract of insurance for his or her liability when death not intentional.

Also – insanity Nordstrom v. Baumann SCC – Wife deliberately set fire to house, caused death to husband – allowed to
inherit because whe did not understand the nature/quality of her act due to insanity. If not able to form the intent to commit
the crime then the public policy rule should not apply.




                                                               25
                                                            Class Gift
Class Gift - A gift, which is made to a group of beneficiaries that share a common characteristic. Usually related to
testator ex. Gift to my children, grandchildren ect.
Kingsbury - Prima facie a class gift is a gift to a class consisting of persons who are included and comprehended under
some general description and bear a certain relation to the testator.

Characteristics:
       1. Number of members in the class is uncertain
       2. Amount each member of the class will receive is uncertain
       3. Doctrine of lapse does not apply to class gifts
       Rule of Law – when a beneficiary predeceases a testator the gift to that beneficiary fails or lapses, it doesn’t pass
       to the estate of that beneficiary. But class gift does not lapse – rather where one beneficiary predeceases then the
       share that they would have received does not lapse – rather passes to the surviving members of the class.
       4. May be modified by a substitutionary gift
       5. When the class closes

Gift Nominata (named gift) – Where people are described by name and by description – example: leave gift equally
among my brothers and sisters: A, B,C and D – this is normally interpreted as a gift nominatim
However, where have gift to named people but subject to contingency or condition, then it is a class gift – example: I leave
the residue of my estate to A, B and C if living/survive me – ratio of Re Snyder.
*The ultimate determination of whether gift nominata or class is dependent upon testators intentions (Robinson v. Des
Roches)

Re Snyder (1960)
On stationers’ – left one farm to son, Dorwin for life remainder to two children Hugh and Etta ‘if living’ and to wife for life
remainder Dorwin for life and then to Hugh and Etta ‘if living’.
Widow died, Etta died and Hugh and wife died then Laura and Dorwin – Dorwin’s wife surviving.
If class – then would have all gone to Dorwin. If not intestacy.
Held: A class
Rationale:
A gift to several named persons is not a gift to a class unless words of contingency are added: as where the gift is to A, B,
C, and D ‘if living’. Considered varying dates of death – and saw grandchildren as last remaining – as a group, one of
which should be living.

Re Hutton (1982) Ont CA
Testator directed that the residue of his estate be divided equally among his brothers and sisters, A, B, C and D, but he
provided that if any should predecease him, survived by a child or children who should survive the testator, the child or
children would take his, her or their deceased parent’s share. A and B predeceased the testator, both leaving child or
children surviving them. However, B’s only child died before the testator.
Held: A class: Testator wanted to leave the entire residue to his brothers and sisters or their children – thus he created a
class gift, as a result B’s share (and his child’s share) did not lapse but accrued to the other members of the class

Re Lightfoot (1985) Ont High Court
Testator directed that the residue of his estate be divided in equal shares among his children. Two of his five children
predeceased him, leaving issue. Should the estate be divided into thirds for the surviving kids (class gift) or are the
estates of the deceased children also entitled.
Held: class gift – thus divided among the class each member of the class getting one third

Description by Number = gift nominatim
Number rule can be rebutted by proof of intention.
Burgess Re (1968)
Testatrix born in Saskatchewan and lived there until 1914 then moved to BC. Left legacy of $1000 each to the two
children (boy and girl) of William Cowan – 2 there when she lived there --- but 4 more born.
Held: Allowed $1000 each to all children
Rationale:
If class gift intended – reject the mistake in numbers. A gift to group referred to by numbers is not a class gift – but here
intention to benefit children of a particular group.
Unsure if knew of other children – and the (boy and girl) she did not name, unlikely it was for them specifically, rather
intention to benefit the children of William Cowan as a class rather than two of them specifically.
Note: this doesn’t do away with the number rule – just able to rebut it if can show that the testator intended otherwise (i.e.
testator intended to benefit all the children)
                                                              26
Artificial Classes
Testator can leave gift to some members of a class or to people who do not share the same characteristics, yet are still
intended to be a class
Kingsbury v. Walter (1901)
Bequethed Property to Niece, Elizabeth Jane Fowler (2 months to 21) and children of Sister Emily, at 21 – tenants in
Common.
Elizabeth predeceased testator – whether class gift or lapsed.
Held:
Trial: Lapsed
H of L: Reversed – was a class gift.
Held that a gift may still be a class gift, even where some named, still a class gift if this is what the testator intended - must
look at the context of the will and what the testator intended. intended to give the property to her as a niece and that he
makes a special class of nieces and nephews consisting of the only child of one of his sisters (Elizabeth) and the children
of his sister Mrs. Walker
Admits near the line – but made a class of nieces and nephews.

Examples
1. gift equally to my kids who survive me
          class gift to be divided among all kids surviving T; to be distributed immediately at the death of T (i.e. class
            closes at T’s death)
2. gift equally to my children/ gift equally to my kids
          class gift to be divided among all children/kids
3. gift to my kids, A, B and C
          gift nominatim, because named specifically – if A predeceases T, then A’s gift (which is not specific) will go
            out on intestacy of T
4. $10,000 to be divided among my kids
          class gift (not named)
5. $10,000 to be divided equally among my kids, A, B and C
          gift nominatim because named
6. $10,000 to be divided equally among such of my kids A, B and D who survive me
          class gift because named and words of contingency (Re Snyder)
7. $10,000 to A, B and C and A, B and C don’t have a common relationship with T (unless artificial class)
          gift nominatim
8. $10,000 to A, B and C if living and A, B, and C have a common relationship with T
          class gift – named and words of contingency (Re Snyder)
9. $10,000 to each of X’s kids who survive me
          gift nominatim because of “each” – thus if one of the beneficiaries predeceases T, then the gift would lapse
            and go to the residue (because it is a specific gift)
10. $10,000 to each of X’s kids
          gift nominatim

                                                        Class Closing
Only where the context of the will doesn’t provide for signs of intention, or words, or the will doesn’t answer will closing
rules be applied.

Good practice to close the class by drafting – e.g. “Divide among those who survive me” - thus closes on date the testator
dies.
Common times for a class to close are:
                1. death of testator
                2. death of life tenant – e.g. “I leave my estate in trust for my husband and when my husband dies, I
                    leave the balance to my kids”

Re Hyslop (1978)
Divide the residue in equal shares between sons – Donald gets his outright -- Glens to be invested, get income –
remainder going to children. When does the class close? Death of Glen or death of testator?
Held: Glen received a life interest in ½ ; class closes on Glens’ death. The children of Glen in existence at the date of
death of testator take an immediate vested interest in the remainder, but the class remains open until the date of Glen’s
death so that any additional children of Glen who come into existence at any time after the death of T shall be members of
the class.

                                                               27
Rationale:
Traditional RULEs:
 - when a life tenancy, usually the class will only close after the death of the life tenant when the remainder is to someone
not related to the life tenant
- the class closes upon death of testator, when there is a life tenancy followed by remainder to life tenancy’s children
(Flurry) – BUT…
Court should only resort to class closing rules when the intention of the testator is not clear
However – don’t need rules of construction/class closing rules – clear in the will – did not want to limit to only children
alive, could have more.

Ability to have Children:
Inland Revenue Commissioners v. Bernstein & Re Westminister Bank’s Declaration of Trust (60’s):
Court does not make presumptions regarding capability of having children. However, Eguity allows those administering an
estate permission to distribute if it is clear that a woman by reason of age/medical condition will not bear children, and in
other special circumstances.
Getty v. Crow (1985)
A 77 yr old left a life estate in real property – remainder to kids. Wanted to sell, and kids agreed – but purchaser
concerned about possible unborn/adopted kids. Proof that could not sire kids, and would not qualify to adopt children.
Held: The court could rely, not on mathematical certainty, but rather ‘moral certainty’
Principle Generally: If can collect everyone who has a vested financial interest to agree – you can make your own rules –
on one to say no b/c testator didn’t intend.

Class Closing Rules
i. Immediate Gift to a Class
Ex. “to the children of A equally”
If immediate, the class closes at testator’s death and all those w/I description are entitled, those born after are excluded.
However, if no one in existense to satisfy the description class remains open unti it closes naturally.
Re Charlesworth Estate (1996)
Testatrix left ½ in trust “for the children of my niece, Lynne Arbez, and my nephew, Wayne Kindret, in equal shares.”
When testatrix died – Wayne had 2 kids; Lynne had one --- Alaina second born 161/2 months later. Whether the trust
could be varied to include Alaina.
Held: Alaina excluded (however allowed variation of trust under trustee act – to enhance family well-being.
Rationale:
No evidence regarding testatrix’s intent on closing, so must rely on rules.
If the will provides for a direct or immediate gift with no provision as to the time of vesting – the class will close
at the date of the testator’s death – if any members of that class at that date.

ii. Class Gift Postponed to Prior Interest
Ex. “To X for life, with remainder to the children of A equally”
If postponed by a prior life interest, or direction to accumulate – then the class closes on death of life tenant or
end of accumulation. If none fit this description it remains open until it closes naturally.
Latta v. Lowry (1886)
Testator Bogart left real property to son-in-law Treadway, for the life of him and his wife. Remainder to their kids. 6 kids
living at testators death, 2 born after – 5 survived.
Held: Divide into 8 parts and distribute to the living and estates.
Rationale:
If property given to A for life, with a remainder to children of B, all the children in existence at testator’s death take vested
interest subject to partial divestment in favour of children subsequently coming into existence during the life of A.

iii. Class Gift Postponed by Condition (Andrews v. Partington Rule)
Ex. “To the children of A when they marry” OR “To X for life, remainder to the children of A at 21”
If there is a gift to a class when the members have satisfied a condition, the class closes at the testator’s death if
a member of the class then in existence has satisfied the condition. If no one has, the class closes when the first
member satisfies the condition. Those persons in existence when class closes, are potential members allowed to take
if satisfy condition – all other’s excluded.
Similarly if there is a prior interest – the class closes at the determination of that interest if a member has satisfied the
condition.
Re Edmondson’s Will Trusts (1972)



                                                               28
Testator left ¼ of residue to son for life, remainder to son’s children son appointed by deed. Son exercised power to
appoint – to children of two sons whenever born once reached 21. Held while 2 sons had kids. One son had 3 children,
the other four. Second son remarried wife of 30.
Held:
Trial – the class closed on the date eldest of 8 persons attained age 21.
Appeal – the rule in Andrews v. Partington is excluded – by ‘whenever born’ – includes all children, eldest reaching 21
makes no difference.
Rationale:
Relates to words “whenever born” in the deed of appointment – general terms have been held not to exclude the rule (ex.
Born or hereafter to be born), why let this phrase uphold distribution – HOWEVER, the phrase here (whenever born) is not
general, but a specific and emphatic phrase which in terms points to all time in the future, not specific time.

Gifts to Each Member of a Class
Ex. “$1000 to each of the children of A at age 21.”
If a gift of money to each member of a group of persons described by a common characteristic, then another rule
applies. If there is an immediate gift of a separate amount to each, then class closes at testator’s death and only
those then living are members. Does not matter if postponed by a condition. Class closes, even if no one living at
testator’s death.
Re Bellville (1941)
Testator – gave wife of nephew 2000 if she had another son after his death, 10 000 to any dauther who is born after the
date of this will, before any further son.
Nephew/Wife had Girl, Boy (before testators death), one more Girl born after testators death.
Held:
Trial - Only first two entitled to their legacies
Appeal – same – last girl not entitled.
Rationale:
A gift of a certain sum to each of a class of objects at a future period is confined to those living at the testators death. Look
at whether anything prevents the rule – nothing.




                                                               29
                                                     Lapse and Survivorship

Lapse is a Rule of law – States that a gift to a beneficiary who predeceases the testator fails or lapses, the gift does
not pass to the beneficiary’s estate.

Disposition of Lapsed Gift
23       Disposition of    23. Except when a contrary intention appears by the will, property or an interest therein that
SLRA     property in       is comprised or intended to be comprised in a devise or bequest that fails or becomes void by
         void devise –     reason of,
         Goes into         (a) the death of the devisee or donee in the lifetime of the testator; or
         residue           (b) the devise or bequest being disclaimed or being contrary to law or otherwise incapable of
                           taking effect,
                           is included in the residuary devise or bequest, if any, contained in the will.


If no residuary gift, or the gift was the residue, the property passes as on intestacy:
Stuart Re (1964)
Gave numerous pecuniary gifts – one to niece, Annabelle also one of 13 named to divide residue.
Annabelle predeceased.
Held: Her interests pass as on an intestacy
Legislation does not say divisible among remaining residuary.

To Avoid Lapse:
1. Substitutionary or alternative gift – by naming an alternative beneficiary to take gift if the first should predecease.
2. Anti-lapse legislation
3. Common Law exceptions to Lapse
a.) If class gift = will not lapse/legislation does not apply [CL exception]
b.) Whether Joint Tenancy = will not lapse/legislation does not apply [CL exception]
  (If not clear; personalty = JT; Real Estate = TC)
c.) If it is a gift made in fulfilment of a moral obligation = will not lapse/legis does not [CL exception]

Summary – What happens when a gift lapses

step #1: Is the gift conveyed in a JT (“Theirs Absolutely – Coughlin)?
         If yes, then under common law exception to lapse
         if no, go to step #2
step #2Is the gift a class gift or a gift nominatim?
         if class gift; then divided among survivors of class (unless contrary intention in the will)
         if gift nominatim, then go to step #3
step #3: If gift nominatim, was there a gift over? Or Moral Obligation?
         if yes, then goes to that person
         if no, then go to step #4
step #4: If no gift over, then was the gift made to child, grandchild, brother or sister of testator AND this person
predeceased the testator AND they left a spouse or issue?
         if yes, then s. 31 applies (unless contrary intention in the will)

1. Substitutionary/Accrual: --- also shows contrary intention to anti-lapse legislation
Permissible to avoid the effects of doctrine of lapse by providing that if the beneficiary named should predecease him or
her, the property shall go to someone else. Can avoid effects of lapse, but can not avoid the doctrine itself.
Re Greenwood; Greenwood v. Sutcliffe – Testatrix directed that if her brothers or niece should predecease leaving no
issue the benefits “shall not lapse” but shall take effect as if his or her death happened immediately after mine. Brothers
predeceased leaving issue,
Held: Was substitutionary – but noted that ousting not allowed.

Re Cousen’s Will Trusts (1937)
Left all to wife, then trust for children of an uncle, if any child predecease hold it in trust for their estate. A child
predeceased, and so did their personal representative.
Held: Lapse – nothing in the will which provides against lapse if personal rep, the substituted, dies.
So if substitutionary beneficiary predeceases the testator as well as primary beneficiary, the gift lapses.


                                                                 30
Words of Limitation or Substitution
To A, his heirs, executors and assigns = a substitutionary gift to A’s heirs?
Re Klien; Public Trustee of BC v. Cochrane (1981)
Will left entire estate to wife “to hold unto her, her heirs, her executors and administrators absolutely and forever.” Wife
predeceased, no issue of that marriage, wife had son from prior.
Held:
Trial – created substitutionary gift in favour of wife’s son. Public trustee appealed.
CofA – Appeal allowed – not a substitutionary gift
These words are words of limitation, not of substitution.
(Marshall - Only saved if for example T knew that beneficiary had already died at time of will.)

Note: modern cases “or” before the phrase his heirs, executors and assigns = substitutionary gift for real and personal
“and” before may have same effect for personal property.

Class Gifts as Substitutionary
Though lapse does not apply, people often use substitutionary here as well. If person died before will made – must show
that not substitutionary, but rather intended original gift to them.
Re Gradsett
Beneficiaries included 3 brothers; 2 sisters – Remainder interest to brothers and sisters who survive me, and in case of
deceased to their children in equal shares.
2 brothers predeceased – w/o issue = 0
 rd
3 brother died after testator – w/o issue = goes to his estate
1 sister died after testator leaving issue = splits among her kids
1 sister dead when will made – predeceased – with issue = ?
Held: C of A – Used the word ‘sisters,’ wanted the children of the issue to get share. No original gift to the dead sister was
contemplated, rather original gift to her children.

Note: If substitute non-existent charity. Re Davis – Had made four previous wills dividing her estate – the last with a
different solicitor, she left entire estate to a non-existent cancer society. Seive Pre – if charitable purpose, then apply to
similar charity.

Accruer Clause – expresses a contrary intention to the legislation
Ex. If gives to daughters A,B,C & D for life, with remainder to their issue, Add that “if any should die w/o issue their shares
shall fall into and become part of the testatrix’s residuary estate and be held and disposed of on the trusts declared for her
other daughters and issue.”

Tribble Estate v. McGuire (1993)
Divided among 6 equal shares for 6 named persons – “if any of the named persons predeceases me, the number of
residuary shares is to be reduced accordingly and the shares of the survivors augmented correspondingly.”

2. Common Law Exceptions to Lapse
i.) Joint Tenancy – is a gift of the entirety and confers a right of survivorship, such that if one predeceases the other has
right of survivorship still.
Note: Where a gift is made to a class, such as my children, but are also named individually, then normally construed as
gift nominatim. Then raises the question of whether JT or T in C.
If TC – the interest will lapse, unless deceased falls w/I preferred class in anti-lapse
 - a gift to A and B = JT; a gift to A and B equally = TC;
By STATUE s. 13 CLPA – gift presumed to be as tenants in common if realty to two or more = TC, unless contrary

Re Gamble (1906)
Testator devised farm to sisters Mary Ann and Catharine – clearly TC.
Also gave residue to them = JT
Catherine predeceased
Held: Mary Ann got – ½ TC in farm, all personalty, ½ (which is ¼) of realty in residue
Catherine’s interest fell into residue, but b/c real property remained TC, ½ share of residuary realty went out on intestacy.
Mary Ann got personalty in residue due to it being JT.
* Anti-lapse did not apply to siblings at the time

Relies heavily on intention of testator
Re Coughlin (1982) Ontario


                                                               31
Testatrix left entire estate to her sister Mona and brother Alonzo and great-nephew Gerard “in equal shares, share and
share alike to be theirs absolutely.” Three people having live together with testratrix for over 20 years. (Don’t know if
estate is real estate or personalty)
Mona and Alonzo predeceased – nearest relative a nephew who rarely visited.
Whether intended to leave a TC or if saying “theirs absolutely” – intending to benefit only those three, then is sufficient to
give a JT.
Held: “Theirs absolutely” is sufficient to make class gift and JT
T intended for her entire estate to pass to 3 individuals as a class – court emphasised even though “in equal shares” and
“share and share alike” and s. 13 CLPA favours finding of tenancy in common; the words “to be theirs absolutely” and fact
situation favours joint tenancy
* Case seems to blur class gift issue and JT/TC issue AND this case is highly fact dependent – generally case law favours
presumption of tenants in common for real estate and use of words “share and share alike”; in this case that presumption
was modified by the words: “to be theirs absolutely” which is found in a class gift.

ii.) Gift in Fulfilment of Moral Obligation
An old rule that if a testator makes a gift to discharge a moral obligation, and the beneficiary predeceases him, the gift
does not lapse but passes to his estate. Restricted to where the gift combines a bounty and a legal, unenforceable,
obligation.
Re Mackie (1986) Ontario
Left estate equally to sister and sister-in-law. Sister-in-law died, then testator. Sister-in-law had provided various services
to testator’s wife when ill, and testator after her death.
Held: The bequest to Elenor Harris lapsed by reason of predeceasing.
Moral obligation only where use bequest to discharge a debt. When T gives gift due to past friendship with or kindness to
the testator, then no moral obligation – rather personal in nature.

Ambit of rule uncertain:
Older Cases – restrict the rule to the payment of debts discharged in the testator’s bankruptcy and of statute-barred bedts.
Stevens v. King – a discharge of what the testator regarded as a moral obligation.
Re Leach’s Will Trusts – testator in a codicil directed payment to person deceased son was indebted to.

iii.) Class Gifts – Doctrine of lapse does not apply to class gifts, if member of class dies before testator the other members
of the class take his share. Only lapses if all members of a class predecease the testator and no alternative gift.

3. Anti-Lapse Legislation:
Doctrine of lapse in likely contrary to the testator’s intentions when he or she leaves a gift to a close relative. If the testator
had thought about lapsing, they would no doubt have name an alternative beneficiary.
There is a contrary intention to lapsing when:
a.) Substitution/Accrual
b.) “if she/he/they survives me”
c.) Use circumstances to determine

Two types of legislation:
1. Older - English Wills Act – to prevent lapse by letting the property pass through the estate of the primary beneficiary
into that of the substituted beneficiary. Used in Nova Scotia.
Problem: Created a double succession – got tax twice – each time passed under the will.

Re Wolson; Wolson v. Jackson (1939)
Solomon Wolson gave a life interest in residue of estate to Wife and remainder in ¼ of residue to 3 kids at 25. One
daughter died after testator, at 24, and left an infant daughter.
Held: Legislation does not save a contingent interest which has already failed.
Purpose was to protect against lapse due to death of child in lifetime, not because did not attain a condition.

2. Current - Uniform Wills Act/Now SLRA – does not prevent lapse but provides for statutory substitutionary beneficiaries.
Used in Ontario.

s.31        Anti-Lapse               31. Except when a contrary intention appears by the will, where a devise or bequest is
SLRA        Legislation              made to a child, grandchild, brother or sister of the testator who dies before the
                                     testator, either before or after the testator makes his or her will, and leaves a spouse
                                     or issue surviving the testator, the devise or bequest does not lapse but takes effect
                                     as if it had been made directly to the persons among whom and in the shares in which
                                     the estate of that person would have been divisible,
                                                                32
                                     (a) if that person had died immediately after the death of the testator;
                                     (b) if that person had died intestate;
                                     (c) if that person had died without debts; and
                                     (d) if section 45 (preferential share) had not been passed.
                                     [If spouse = all to them; if spoue + 2 kids = 1/3 each.]

Contrary Intention
i. Substitutionary/Accrual clauses - above

ii. Other factors
Use Circumstances to Determine Contrary Intention
Re Wudel; Moore v. Moore (1982) Alberta (Like Ont. except in relation to class gifts)
Maria Wudel died in 1979 – survived by 4 sons and 3 daughters. One daughter predeceased – she was survived by four
daughters.
Directions – 8% equally among living GC; 28% equally among Sons and 64% equally among daughters. If any sons or
daughters died after the date of the will, but before her death – portion that child was entitled to be divided equally among
his or her children, if no kids goes back to share among testratrix’s sons and daughters.
Held: In whole, considering the entire will and circumstances, she ousted the anti-lapse legislation.
Knew that daughter had died – but not what would happen after will. In relation to remaining children there was a clear
intention to ‘oust’ the anti-lapse legislation. Contrary intention also found in fact that all grandkids got equal.
*Note: If gift had been to a class – children --- then anti-lapse would not have applied.

Use Dominant Intention
Horton v. Horton (1978) B.C.
“3 equal shares among my surviving children.” One child predeceased the testatrix, though leaving issue.
- seems that it is a gift nominata due to “3” however, says “equal” and “survives me” --- determine dominant intention
Held: Dominant intention was ‘among children’ court deleted “3”

Contrary Intention Must be Express
Doucette v. Fedoruk Estate (1992) Manitoba
Deceased made unequal provision for children of his decease siblings. Provided a gift over in residuary clause, but not in
clause giving legacy to predeceased.
Held: contrary intention must be express – need to say “if she survives me” or similiar

Special Situations
a.) Powers of Attorney – The doctrine of lapse applies to all powers of appointment, so that, if the donee of the power
(person intended to make appointment) dies before the testator, the power of appointment lapses. Though does not cause
lapse of gift to be taken under appointment. However, if appointee predeceases then lapses.
b.) Dissolved corporations – Lapses applies to a corporation dissolved before the testator’s death. Ex. if a Co. ceases to
exist for failure to file annual returns.
Montreal Trust Co v. Boy Scouts
Testator gave share of the residue of his estate to respondent company – struck off register before death, restored
thereafter. Court allowed revival day to go back to time of stricking. So no lapse.
c.) Lapse applies to gifts for charitable purposes. So if ceased to exist – lapses. Though will try – if can find a ‘general
charitable intention’ may be able to give effect to some degree.
d.) Secret Trusts – Entered into b/w testator and beneficiary – agree to apply money they receive under the testator’s will
for purpose of other. If the beneficiary named in the will (the trustee) predeceases – then it lapses. But if the ‘other’ dies,
but beneficiary name does not then does not lapse.

Note: Republishing such that if T leaves to X and X dies, then T makes a codicil but does not refer to gift to X, gift to X still
lapses. Though if made substitutionary in codicil that would work.




                                                               33
Survivorship
What happens if owner of the asset and potential beneficiary dies in a common accident, and can not tell who died first.
Essentially two estates battling each other.
Previously:
Common Law: The one who wanted to claim the property had to prove the order of death.
Survivorship Act (before SLRA, has been changed): Deaths were presumed to have occurred in order of seniority (age),
though presumption could be rebutted (Adare v. Fairplay). All types of property except insurance.
Insurance Act: Paid out as if beneficiary had predeceased the insured.
So could have conflict – seniority v. beneficiary dies first
Re Topliss Estates (1957) – H and W died in common disaster. H owned policy of insurance, W the beneficiary. Deemed
W to predecease.
But this is unfair to W’s estate, insurance money’s go to H’s next of kin. Similarly unfair to older estate, for younger
benefits.

SLRA (Part IV): The property of each person is disposed of as if each survived the other. With JT made T in C.
55(1) Succession                   55. (1) Where two or more persons die at the same time or in circumstances rendering
                                   it uncertain which of them survived the other or others, the property of each person, or
                                   any property of which he or she is competent to dispose, shall be disposed of as if
                                   he or she had survived the other or others.
55(2) Simultaneous death of        (2) Unless a contrary intention appears, where two or more persons hold legal or
       joint tenants               equitable title to property as joint tenants, or with respect to a joint account, with
                                   each other, and all of them die at the same time or in circumstances rendering it
                                   uncertain which of them survived the other or others, each person shall be deemed,
                                   for the purposes of subsection (1), to have held as tenant in common with the other
                                   or with each of the others in that property.

55(3)    Provision in will for       (3) Where a will contains a provision for a substitute personal representative operative
         substitute representative   if an executor designated in the will,
                                     (a) dies before the testator;
                                     (b) dies at the same time as the testator; or
                                     (c) dies in circumstances rendering it uncertain which of them survived the other,
                                     and the designated executor dies at the same time as the testator or in circumstances
                                     rendering it uncertain which of them survived the other, then, for the purpose of
                                     probate, the case for which the will provides shall be deemed to have occurred.

55(4)    Proceeds of insurance       (4) The proceeds of a policy of insurance shall be paid in accordance with sections
                                     215 and 319 of the Insurance Act and thereafter this Part applies to their disposition.


194(1)       Beneficiary              194. (1) Where a beneficiary predeceases the person whose life is insured, and no
Insurance    predeceasing life        disposition of the share of the deceased beneficiary in the insurance money is
Act          insured                  provided in the contract or by a declaration, the share is payable,
                                      (a) to the surviving beneficiary; or
                                      (b) if there is more than one surviving beneficiary, to the surviving beneficiaries in
                                      equal shares; or
                                      (c) if there is no surviving beneficiary, to the insured or the insured's personal
                                      representative.
194(2)       Several beneficiaries    (2) Where two or more beneficiaries are designated otherwise than alternatively, but
                                      no division of the insurance money is made, the insurance money is payable to them
                                      in equal shares.
215          Simultaneous deaths      215. Unless a contract or a declaration otherwise provides, where the person whose
                                      life is insured and a beneficiary die at the same time or in circumstances rendering it
                                      uncertain which of them survived the other, the insurance money is payable in
                                      accordance with subsection 194 (1) as if the beneficiary had predeceased the
                                      person whose life is insured.

Note: It is now common in wills to provide expressly for substitute beneficiaries and personal reps in event of double
death.
Also often survivorship clause saying X must survive by 30 days – minimizes estate litigation to prove who survived who,
interpreted as if predeceased.

                                                             34
                                                Perpetuities and Accumulations

Prevents having an asset held in trust for a long time.
Legislation preventing a person to tie up their property
Whitby v. Mitchell – a remainder to the issue of an unborn person after a limitation for life to that person is void. Only
applies to remainders in land.

The Rule under Statute
To meliorate strictness of rule – introduce principle of wait and see

Wait and See Principle
Allows actual events to determine whether an interest is valid or void --- not void simply because interest might possibly
vest beyond perpetuity period.

Measuring Live
Measuring life plus twenty-one years
Ex. The youngest issue of Queen Elizabeth – must be alive at the death of Testator - want it to be a young life
Two models
Statutory list model (BC, Alberta, Yukon) – lists all the possible measuring lives
Statutory Formula Model (Ont, NWT) – Unclear who measuring lives are intended to be. Use the lives in being shoes lives
restrict or are relevant to the vesting period.

Perpetuities   Measurement of          6. (1) Except as provided in section 9, subsection 13 (3) and subsections 15 (2) and
Act 6(1)       perpetuity period       (3), the perpetuity period shall be measured in the same way as if this Act had not
                                       been passed, but, in measuring that period by including a life in being when the
                                       interest was created, no life shall be included other than that of any person whose
                                       life, at the time the interest was created, limits or is a relevant factor that limits in
                                       some way the period within which the conditions for vesting of the interest may
                                       occur.
                                       (2) A life that is a relevant factor in limiting the time for vesting of any part of a gift to
                                       a class shall be a relevant life in relation to the entire class.

* If no measuring life – then within 21 years

Note: May not need the Perpetuities – other means of preventing stagnation, income and death taxes, support legislation.

Accumulations
Arises when income is reinvested in the trust. Usually once you hit a certain amount you stop and distribute.
Eg. Rental income – Income to be invested and accumulated.

Only allowed to accumulate interest in a trust for 21 years since death of testator (AA 1(1)(4))
Eg. Give to Sally at 30 – she’s 5; Can accumulate until she’s 26, but then surplus income will be added to the residue of
the estate.

Accumulations Act
1(1)        Maximum                   1. (1) No disposition of any real or personal property shall direct the income thereof
            accumulation              to be wholly or partially accumulated for any longer than one of the following terms:
            periods                   1. The Life of the grantor
                                      4. Twenty-one years from the death of the grantor, settlor or testator.

1(6)           Application of         (6) Where an accumulation is directed contrary to this Act, such direction is null and
               invalid                void, and the rents, issues, profits and produce of the property so directed to be
               accumulations          accumulated shall, so long as they are directed to be accumulated contrary to this
                                      Act, go to and be received by such person as would have been entitled thereto if
                                      such accumulation had not been so directed.
2              Saving as to debts     2. Nothing in this Act extends to any provision for payment of debts of a grantor,
               or portions for        settlor, devisor or other person, or to any provision for raising portions for a child of a
               children               grantor, settlor or devisor, or for a child of a person taking an interest under any such
                                      conveyance, settlement or devise, or to any direction touching the produce of timber
                                      or wood upon any lands or tenements, but all such provisions and directions may be
                                      made and given as if this Act had not been passed.
                                                               35
3             Rules as to             3. The rules of law and statutory enactments relating to accumulations do not apply
              accumulations not       and shall be deemed never to have applied to the trusts of a plan, trust or fund
              applicable to           established for the purpose of providing pensions, retirement allowances, annuities,
              employee benefit        or sickness, death or other benefits to employees or to their widows, dependants or
              trusts                  other beneficiaries.

Terminating the Accumulation
May direct accumulated income to be paid to a person at an age beyond the age of majority.
Saunders v. Vaughtier
Accumulation of income in a fund to go to beneficiaries at age 25.
Beneficiaries could demand delivery of the fund at age 21 (age of majority)
Where there is a person sui generic (mentally competent and over the age of majority) that is solely interested in property
that has vested in him or her, only thing being postponed is delivery they can call for a transfer of the property.
*Has been extended to other postponed gifts.

Re Burns (1960)
The rule of Saunders does not apply if annuities are charged on the capital as well as the income.
Instructions to accumulate some while paying out to Millicent, once annuitant and Millicent dead, rest to go to named
beneficiaries with some held in trust to pay annual income to named charities.
Millicent took a support payment instead.
The 21 years expired before Millicent’s death.
Whether could call in the interest before Millicent’s death. No longer allowed to accumulate.
Held: Released income to go out on intestacy
Trial: No Saunders did not apply And the portion that could no longer accumulate should go out on intestacy.
CofA: Millicent has right to call upon all the income to satisfy her payments.

Destination of Excess Income during Accumulation Period
Re Ellis (1982)
Testator directed a certain amount to be paid out, (pay widow support, income and maintenance for retarded son) earned
then amount to pay out. Should it be accumulated, or go directly to remaindermen beneficiaries (other siblings and
Disability group) to take on Widow’s and Lyle’s death.
Held: An implied direction to accumulate – income earned by each fund accrues to that fund.
Determined that widow and Lyle priority – and no way of knowing what Lyle would need. Intention to go to disability group,
but only if all the money not required for Lyle. No vested interest in Lyle’s. Can’t go ahead with excess in this fund, b/c
don’t know what will need in future – goes against wishes of testator.

Exceeding the Accumulation Period
Whether accumulate exceeds permissible period, it must first be determined whether the direction exceeds the perpetuity
period. Can wait and see and in the meantime income can be accumulated for period under the Accumulations Act.
Re Struthers (1980) C of A
T gave residue plus $4000 a year to wife. 75 000 – to give $5000 a yr to stepdaughter, remainder to be divided to her
kids. The rest to be divided among step-neices at 21. If anyone died their share to grandneices at 21. Wife died 24 years
after T. So accumulations act would kick in on the 75 000.
Trial – entire income from 75 000 goes to grand-neices, so accumulations act does not apply.
C of A –
Held:
The testator provided for 5000 annual payment – did not say whether income or capital. Where T does not designate the
source from which it is payable then the law steps in.
General rule is that if not specified – primarily payable out of the income and secondarily, to the extent of any deficienty
out of the capital.
The surplus into of a specific fund falls into residue, and the residue directed to grandnieces.
Accumulations Act applies to implied directions to accumulate as well as express. Applies here and residue from step-
daughters 75 000 goes to grand nieces.

Re Hume
T died in 1949 – 100 per month, for some time insufficient, then excess since 1971 which had been accumulating. But 21
= 1970.
Held: Goes out on intestacy
Clock starts running whether there was accumulation or not.

Re Martin
                                                             36
T died in 1956 – annuities for widow, daughter and granddaughter residue to great-grandchildren then living. Widow died
in 1973. There was substantial surplus after payment of annuities in widows. The annuities were insufficient to exhaust
the income of the estate and there was therefore an implied direction to accumulate income for more than 21 years
contrary to The Accumulations Act
Held: an order that the surplus income accumulating since July 6, 1977 is payable in equal shares to the daughter of the
deceased George F. Martin and to the estate of his deceased wife Mary Ellen Martin.
- Surplus income earned before death (1973) & - Surplus income after her death until (1977) excess during accumulation
period: implied direction to accumulate – the surplus income up to 1977 is re-invested and forms part of the capital (Re
Ellis)
- What happens after 1977 – trust intact b/c daughter/granddaughter/great’s alive
At time of testator’s death the nearest next of kin (rules of intestacy) are the wife (thus to wife’s estate) and the daughter
Wife is dead – but her interest vested because she survived testator – thus her share goes out to her estate (will or
intestacy)


Perpetuity and Accumulation Interaction
Example – could have accumulation act and perpetuities act at the same time
10 000 invested until no longer any great grandchildren alive and under 40 years.
Accumulates for 21 years = 30 000.
Not even close to the trust period – gg’s under 40. Surplus goes to those who get residuary.
If reach the end of perpetutities period and still do not have gg’s under 40 then offended the rule against perpetutities and
the fund goes into residue of the estate.
Because the perpetuity period is usually longer than the accumulations period, it is possible for the property to NOT vest
within the perpetuity period and thus become void; but at the same time have surplus income accumulate (after 21 years)
which goes out on intestacy- solution to above problem.




                                                              37
                                                  Substitute Decisions

Reforms: 3 tier – SDA, CTA/HCCA and Advocacy Act (revoked)
SDA:
- Continuing power of attorney
- Any power of attorney automatically survives the mental incapacity of a donor
Any power of attorney drawn before Oct. 3, 1995 and including clause that survives mental incapacity, done
properly under POA Act – deemed to be a continuing power of attorney in accordance with the Substitute
Decisions Act i.e. don’t need to do a new POA under the new Act.

A. A Power of attorney is a document that confers upon the attorney an authority or power to act on behalf of the person
granting the authority, the grantor/donor.
Can be revoked at any time so long as the donor still has necessary capacity – always good to give notice of revocation to
 rd
3 parties.
Death of the donor automatically revokes the power of attorney.

Previously:
Under Powers of Attorney Act - fails if grantor becomes incapable
Used to be able to put continuing clause in but not, If put a endurance clause (operate dispite inability to manage
property) in a general power of attorney it becomes a continuing power of attorney and will revoke any broader continuing
power
* This Act is still operative – if want to avoid continuing power of attorney can use

Capacity:
   - Does the person have the ability to understand the information that is relevant to making the decision?
   - Does the person appreciate the reasonably foreseeable consequences of the decision being made?

A. Property:
- appointment for financial and property – want specific authority over particular accounts/property – overseen by the
grantor
- appointment for fear of future loss of mental capacity – want broad authority
Eligible: 18 yrs

Capacity to Grant a Power of Attorney:
The person (lawyer) preparing the power of attorney is responsible for ensuring the person is capable of granting the
power.

SDA Capacity to Grant a Power of Attorney
8(1)  Capacity to         8 (1) A person is capable of giving a continuing power of attorney if he or she,
      Grant Continuing (a) knows what kind of property he or she has and its approximate value;
      Power of            (b) is aware of obligations owed to his or her dependants;
      Attorney            (c) knows that the attorney will be able to do on the person's behalf anything in respect of
                          property that the person could do if capable, except make a will, subject to the conditions and
                          restrictions set out in the power of attorney;
                          (d) knows that the attorney must account for his or her dealings with the person's property;
                          (e) knows that he or she may, if capable, revoke the continuing power of attorney;
                          (f) appreciates that unless the attorney manages the property prudently its value may
                          decline; and
                          (g) appreciates the possibility that the attorney could misuse the authority given to him or her.
                          * Test is similar to Banks v. Goodfellows – first two
                          * Also be 18 and capable of managing property
                          s. 8(2) SDA: Capacity to revoke – A person is capable of revoking a continuing power of
                          attorney if he or she is capable of giving one.
6     Incapacity to       6. A person is incapable of managing property if the person is not able to understand
      Manage Property information that is relevant to making a decision in the management of his or her property, or
                          is not able to appreciate the reasonably foreseeable consequences of a decision or lack of
                          decision.

B. Powers of Attorney For Personal Care
Who can be: Must be 16 yrs and capable of making personal care decisions.
    - allows grantor to choose person
                                                            38
   - allows directions in the document
Should also include:
   - how capacity to be decided
   - how the power is to be used
   - Ulysses Agreements – It may be appropriate to limit the grantor’s ability to object once incapable – re. episodic
       psychiatric disorders.

47(1)   Capacity to          47 (1) A person is capable of giving a power of attorney for personal care if the person,
        Grant power of       (a) has the ability to understand whether the proposed attorney has a genuine concern for
        attorney for         the person's welfare; and
        Personal Care        (b) appreciates that the person may need to have the proposed attorney make decisions for
                             the person.
                             * Also must be 16 (low threshold)
45      Incapacity for       45. A person is incapable of personal care if the person is not able to understand information
        personal care        that is relevant to making a decision concerning his or her own health care, nutrition, shelter,
                             clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable
                             consequences of a decision or lack of decision.
48      Execution/           s. 48(1) SDA: Execution – A power of attorney for personal care shall be executed in the
        Witnesses            presence of two witnesses, each of whom shall sign the power of attorney as witness.
                             s. 48(2) SDA: Persons who shall not be witnesses – The persons referred to in subsection
                             10(2) shall not be witnesses.



Execution: Witnesses – Need 2
s.1(2) Definition of       partner - intended to include same sex relationships; very broad definition – “Two persons
        partner            are partners for the purpose of this act if they have lived together for at least one year and
                           have a close personal relationship that is of primary importance in both persons’ lives”
SDA     Persons who        10(2) The following persons shall not be witnesses:
10(2) shall not be         1. The attorney or the attorney's spouse or partner.
        witnesses          2. The grantor's spouse or partner.
                           3. A child of the grantor or a person whom the grantor has demonstrated a settled intention
                           to treat as his or her child.
                           4. A person whose property is under guardianship or who has a guardian of the person.
                           5. A person who is less than eighteen years old.
                           * Partner: Two persons are partners if they have live together for at least 1 year and have a
                           close personal relationship, which is of primary importance to each other. (Broad)
                           * There is a relieving provision – can declare P of A to be effective notwithstanding using
                           wrong witnesses

Form
Requires:
    - a grantor capable of granting the power
    - a named attorney or attorneys
    - a statement that the attorney has the power to make a property decision on grantor’s behalf
    - the grantor’s signature
    - date and 2 qualified witnesses
Also
    - specify if multiple attorneys – if joint, severally or sequentially
    - how capacity of grantor will be assessed
    - directions on how power to be used
Also
    - any conditions – otherwise --- anything grantor could do if capable
    - how much compensation – otherwise annual prescribed rate.
    - Gifts or Donations – limited to only if the grantor indicated while capable that he or she would maker or authorize
       such gifts and loans. Charitable gifts – only if evidence that made similar expenditures while capable.
    - Provision to allow negation of a personal claim under the FLA if for example the home needs to be mortgaged or
       sold
    - Unless power of attorney says otherwise an attorney will be subject to the common law limitations on investments
       that apply particularly to fiduciaries (eg. No investing in mutual funds – Haslam v. Haslam) Principle is that the

                                                            39
        ultimate responsibility for making investment remains with the attorney – and they may not delegate unless free to
        accept or reject advice.

* Can have competing powers of attorney: If grant to A then later to B – the second automatically revokes. Banks often
have an automatic revocation clause – problem is if you designate only a few things to bank, revokes everything, left with
only partial under power of attorney.

Can’t grant authority to do anything donor could do if capable – except change the donor’s will.
Problem: If an RRSP is a gift, but when reach 69 must convert it to a RIFF – can they make the beneficiary under the
RIFF. Possibly – argue that just allowing to flow through.

Transfer:
Tension between wanting seemless transfer and protecting against abuse. Proposed solutions:
      - draw up the document but keep it with a lawyer until should be released (only lawyer knows about it – what if
          incapacity and lawyer does not find out)
      - give instructions how incapacity should be determined
      - name a declarant to write declaration when certain event occurs
* Proff notes that should not use incapacity as an event – then need capacity assessor, hard from evidentiary stand point
--- If you afraid the person will act prematurely – they should not be your P of A.

SDA      Determining             9. (3) If the continuing power of attorney provides that it comes into effect when the
9(3)     Incapacity              grantor becomes incapable of managing property but does not provide a method for
         (Before transfer of     determining whether that situation has arisen, the power of attorney comes into effect
         continuing)             when,
                                 (a) the attorney is notified in the prescribed form by an assessor that the assessor has
                                 performed an assessment of the grantor's capacity and has found that the grantor is
                                 incapable of managing property; or
                                 (b) the attorney is notified that a certificate of incapacity has been issued in respect of the
                                 grantor under the Mental Health Act.


B. Guardianships

a.) Statutory Guardian
- If a person is a patient of psychiatric facility and is found to be incapable of managing property, the P.G.T. becomes the
person’s statutory guardian of property.
- If a person is assessed by a capacity assess and found incapable of managing property and
there is no knowledge of an existing power of attorney or spouse or relative then P.G.T.
* Statutory guardianship terminated if less restrictive course of substitute decision-making available.

b.) Court-appointed Guardian
The last resort when all other substitute decision-making options have failed

15       P.G.T. as statutory     15. If a certificate is issued under the Mental Health Act certifying that a person who is a
         guardian                patient of a psychiatric facility is incapable of managing property, the Public Guardian
                                 and Trustee is the person's statutory guardian of property.
16(1)    Assessment of           16. (1) A person may request an assessor to perform an assessment of another
         capacity for            person's capacity or of the person's own capacity for the purpose of determining whether
         statutory               the Public Guardian and Trustee should become the statutory guardian of property under
         guardianship            this section.
17/18    Replacing PGT           If subsequently find out that the person has signed power of attorney person can replace
                                 public guardian and trustee; or if family members want there is a procedure for family to
                                 replace public guardian and trustee (even if no signing document) – s. 16.1
                                  where public guardian and trustee has become involved and want to apply to replace
                                      public guardian and trustee (power of attorney or family member) – that application is
                                      made to the public guardian and trustee and they could theoretically refuse it
                                      (criticism of law – too much power given to public guardian and trustee)
                                 s. 17(4) SDA - public guardian and trustee shall appoint the applicant if the public
                                 guardian and trustee is satisfied that the applicant is suitable to manage the property and
                                 that the management plan is appropriate
                                 Following people can apply s. 17(1):
                                                             40
                                 1. The incapable person's spouse or partner.
                                 2. A relative of the incapable person.
                                 3. The incapable person's attorney under a continuing power of attorney, if the power of
                                 attorney was made before the certificate of incapacity was issued and does not give the
                                 attorney authority over all of the incapable person's property.
                                 4. A trust corporation within the meaning of the Loan and Trust Corporations Act, if the
                                 incapable person's spouse or partner consents in writing to the application.
                                 s. 18 SDA - if public guardian and trustee refuses to allow applicant to replace them, then
                                 they have to give reasons in writing and public guardian and trustee shall apply to the
                                 court to decide the matter – appeal procedure.
22(1)    Court appointment       22. (1) The court may, on any person's application, appoint a guardian of property for a
         of guardian of          person who is incapable of managing property if, as a result, it is necessary for decisions
         property                to be made on his or her behalf by a person who is authorized to do so.
                                  s. 24(2.1) SDA: The court shall not appoint PGT as a guardian under s. 22 unless
                                     the applicant proposes the public guardian and trustee as guardian and there is no
                                     other suitable person who is available and willing to be appointed (last resort).
                                  s. 25 SDA: An order that appointing a guardian of property for a person shall include
                                     a finding that the person is incapable of managing property and that, as a result, it is
                                     necessary for decisions to be made on his or her behalf by a person who is
                                     authorized to do so (i.e. as part of application must include proof of person’s
                                     incapacity).

25       Findings of             25. (1) An order appointing a guardian of property for a person shall include a finding
         Incapacity              that the person is incapable of managing property and that, as a result, it is necessary for
                                 decisions to be made on his or her behalf by a person who is authorized to do so.
                                 Contents of order:
                                 (2) An order appointing a guardian of property may,
                                 (a) require that the guardian post security in the manner and amount that the court
                                 considers appropriate;
                                 (b) make the appointment for a limited period as the court considers appropriate;
                                 (c) impose such other conditions on the appointment as the court considers appropriate.


Duties of an Attorney and Guardians:
What is the standard of care for attorney/guardian?
General - guardian is a fiduciary (32(1)) - should encourage incapable to participate (32(3)) - foster contact b/w incapable
and family/friends (32(4))
 the standard of care in the legislation is based upon whether that individual is seeking compensation for acting.
 32(7) SDA - A guardian who does not receive compensation for managing the property shall exercise the degree of
    care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs.
 32(8) SDA - A guardian who receives compensation for managing the property shall exercise the degree of care,
    diligence and skill that a person in the business of managing the property of others is required to exercise.
 If receiving compensation – held to a standard of care, which is higher – like managing the affairs of another – higher
    level of service. Whereas if no compensation, like managing affairs of yourself.
 Held to both attorneys and guardians.
Note: Compensation for Guardians and Attorneys
A guardian or attorney can take annual compensation in accordance with a prescribed scale.
         - 3% on capital and income receipts
         - 3% on capital and income disbursements
         - 3/5 of 1% as a care and maintenance fee

Duties of guardians/attorneys of property
 apply to both guardians of property and attorneys
 s. 33.1 SDA - guardian of property (and attorneys) shall make reasonable efforts to determine if that person had a
   will and what is in it
 s. 33.2 SDA - any one who has custody of any property (including will) belonging to an incapable has to hand over the
   property (or information about the property) to the guardian if the guardian so requests
 why need to know what is in the will?
 s. 35.1(1) SDA: - A guardian of property shall not dispose of property that the guardian knows is subject to a
   specific testamentary gift in the incapable person’s will.

                                                             41
      s. 35.1(3) SDA: Permitted dispositions – Despite subsection (1),
           (a) the guardian may dispose of the property if the disposition of that property is necessary to comply with the
           guardian’s duties (e.g. need money and need to sell off assets), or
           (b) the guardian may make a gift of the property to the person who would be entitled to it under the will, if the gift
           is authorized by s. 37
      s. 36(1) SDA: Proceeds of disposition – The doctrine of ademption does not apply to property that is subject to a
       specific testamentary gift and that a guardian of property disposed of under this Act, and any one who would have
       acquired a right to the property on the death of the incapable person is entitled to receive from the residue of the
       estate the equivalent of a corresponding right in the proceeds of the disposition of the property, without interest
      under normal rules of ademption if specific gift no longer exists then the gift would adeem BUT doctrine of ademption
       does not apply to property that a guardian disposes of under this act – entitled to receive from the residue of the
       estate the equivalent amount of proceeds of sale of assets prior to distribution of the residue.

Other:
66(1)          Good Faith             66(1) The powers and duties of a guardian of the person shall be exercised and performed
                                      diligently and in good faith
(5)(6)(7)      Encourage              Guardian shall encourage person to participate, shall seek to foster contact with supportive
               participation          family and friends, shall consult family and friends and personal care provider.
(9)            Least                  Shall choose the least restrictive and intrusive course of action
               Restrictive
(10)           Not use confine        Shall not use confinement or monitoring devices or physically restrain, or give consent to
                                      do such unless (a) it is essential to prevent serious bodily harm
(19)           No liability if in     No proceedings for damages shall be commenced if anything done or omitted in good faith
               good faith             in connection with the guardian’s powers and duties

Variation:
26             Variation or         26. (1) The court may vary an order appointing a guardian of property under section 22 or
               substitution         substitute another person as guardian, on motion in the proceeding in which the guardian
               of                   was appointed.
               appointment
               order


Disadvantages of Court Appointed/Advantages of Power of Attorney:
   - Cost/Time and Uncertainty
   - Proscribed form of a management plan, which must be submitted --- all individuals assets and how you will
       manage them.
   - Public Guardian and Trustee is a party – serve them plus alleged incapable individual.
   - If appointed your authority under the Court order – so limited by the management plan
   - Much greater degree of restriction than if had P of A in the first place


50(1)          Special              50 (1) A power of attorney for personal care may contain one or more of the provisions
               Provisions           described in subsection (2), but a provision is not effective unless both of the following
               Use of Force         circumstances exist:
                                    1. At the time the power of attorney was executed or within 30 days afterwards, the grantor
                                    made a statement in the prescribed form indicating that he or she understood the effect of
                                    the provision and of subsection (4).
                                    2. Within 30 days after the power of attorney was executed, an assessor made a statement
                                    in the prescribed form,
                                    i. indicating that, after the power of attorney was executed, the assessor performed an
                                    assessment of the grantor's capacity,
                                    ii. stating the assessor's opinion that, at the time of the assessment, the grantor was capable
                                    of personal care and was capable of understanding the effect of the provision and of
                                    subsection (4), and
                                    iii. setting out the facts on which the opinion is based.
(2)            List of              (2) The provisions referred to in subsection (1) are:
               provisions           1. A provision that authorizes the attorney and other persons under the direction of the
                                    attorney to use force that is necessary and reasonable in the circumstances,
                                    i. to determine whether the grantor is incapable of making a decision to which the Health

                                                                   42
                             Care Consent Act, 1996 applies,
                             ii. to confirm, in accordance with subsection 49 (2), whether the grantor is incapable of
                             personal care, if the power of attorney contains a condition described in clause 49 (1) (b), or
                             iii. to obtain an assessment of the grantor's capacity by an assessor in any other
                             circumstances described in the power of attorney.
                             2. A provision that authorizes the attorney and other persons under the direction of the
                             attorney to use force that is necessary and reasonable in the circumstances to take the
                             grantor to any place for care or treatment, to admit the grantor to that place and to detain
                             and restrain the grantor in that place during the care or treatment.
                             3. A provision that waives the grantor's right to apply to the Consent and Capacity Board
                             under sections 32, 50 and 65 of the Health Care Consent Act, 1996 for a review of a finding
                             of incapacity that applies to a decision to which that Act applies.

(4)         Revocation       (4) If a provision described in subsection (2) is contained in a power of attorney for personal
                             care and both of the circumstances described in subsection (1) exist, the power of attorney
                             may be revoked only if, within 30 days before the revocation is executed, an assessor
                             performed an assessment of the grantor's capacity and made a statement in the prescribed
                             form,
                             (a) indicating that, on a date specified in the statement, the assessor performed an
                             assessment of the grantor's capacity;
                             (b) stating the assessor's opinion that, at the time of the assessment, the grantor was
                             capable of personal care; and
                             (c) setting out the facts on which the opinion is based.


C. Advance Directives
Concept of Living Wills
    - Used to be just expression of wishes
Under s.66(1) (good faith) & (3) now legally enforceable
66(3)       Decisions in       (3) The guardian shall make decisions on the incapable person's behalf to which the
            accordance with Health Care Consent Act, 1996 does not apply in accordance with the following principles:
            Wishes             1. If the guardian knows of a wish or instruction applicable to the circumstances that the
                               incapable person expressed while capable, the guardian shall make the decision in
                               accordance with the wish or instruction.
                               2. The guardian shall use reasonable diligence in ascertaining whether there are such
                               wishes or instructions.
                               3. A later wish or instruction expressed while capable prevails over an earlier wish or
                               instruction.
                               4. If the guardian does not know of a wish or instruction applicable to the circumstances
                               that the incapable person expressed while capable, or if it is impossible to make the
                               decision in accordance with the wish or instruction, the guardian shall make the decision in
                               the incapable person's best interests.
Directives may take be included as a P of A, drafted as separate document, w or w/o accompanying p of a. Also can be
expressed orally or in any other manner. Are not direct communications, but meant to guide the substitute decision-
maker.
Must ensure your advance directives do not void a P of A for personal care.

HCCA: Expressing wishes or instructions regarding treatment
4 & 5 Capacity to grant   Capacity:
      Advance             4. (1) A person is capable with respect to a treatment, admission to a care facility or a
      directives          personal assistance service if the person is able to understand the information that is
      regarding           relevant to making a decision about the treatment, admission or personal assistance service,
      personal care       as the case may be, and able to appreciate the reasonably foreseeable consequences of a
                          decision or lack of decision.
                          Wishes:
                          5. (1) A person may, while capable, express wishes with respect to treatment, admission to
                          a care facility or a personal assistance service.

11(3)   Consent to           a. The nature of the treatment.
        advance              b. The expected benefits of the treatment.
        directives for       c. The material risks of the treatment.
                                                             43
       Treatment            d. The material side effects of the treatment.
       requires             e. Alternative courses of action.
                            f. The likely consequences of not having the treatment.


   prof prefers a more general document about instructions than detailed instructions – detailed instructions may not
    keep up with technology




                                                           44
                                                      Revocation of Wills

SLRA      Revocation        15. A will or part of a will is revoked only by,
15        Generally         (a) marriage, subject to section 16;
                            (b) another will made in accordance with the provisions of this Part;
                            (c) a writing,
                                  (i) declaring an intention to revoke, and
                                  (ii) made in accordance with the provisions of this Part governing making of a will; or
                            (d) burning, tearing or otherwise destroying it by the testator or by some person in his or her
                            presence and by his or her direction with the intention of revoking it.


Failure of Revocation:
    - Is not in accordance with the statute
    - Mistake
    - Lack of capacity (same as to make a will eg. If drunk does not form the intention to revoke)
    - Undue Influence
         Hubley v. Cox – Left estate to sons – D and P. Changed to all P (living with her/HIV) D told her the will was illegal
         and wrote void on it. Held: capacity at the time and valid second will but revocation invalid b/c D exercised undue
         influence.
    - Fraud
    - Inadvertence

Two types of Revocations:
a.) Revocation By Operation of Law
By Marriage
Validity:
          A voidable (annulable) can only be challenged by the parties while other party living – does revoke unless
          avoided.
          A void marriage can be challenged by any person having a financial interest in the matter – does not revoke a will.

16        Exceptions        16. A will is revoked by the marriage of the testator except where,
          to                (a) there is a declaration in the will that it is made in contemplation of the marriage;
          Revocation        (b) the spouse of the testator elects to take under the will, by an instrument in writing
          by Marriage       signed by the spouse and filed within one year after the testator's death in the office of the
                            Estate Registrar for Ontario; or
                            (c) the will is made in exercise of a power of appointment of property which would not in
                            default of the appointment pass to the heir, executor or administrator of the testator or to the
                            persons entitled to the estate of the testator if he or she died intestate.


Banton v. Banton
84 yr old – left to 5 kids; went into retirement home/castrated – marries 31 waitress at the home. Lawyer instructed to
prepare a P of A in favour of Muna, and a will leaving all to Muna.
There was an assessment of capacity.
Held: Lacked capacity, and undue influence of Muna – but marriage was valid, so died intestate – Muna got a substantial
portion of estate.
Problem – lower threshold of marriage, higher of will – yet marriage considered a testamentary act.
Perhaps limit revocation to where T had testamentary capacity at the time.
Effect:
         If no new will made the spouse and any issue receive on intestacy
         May be able to elect under a will that would otherwise be revoked

Exceptions:
   - Wills made in contemplation of marriage
   - Wills made pursuant to a P of A.

i.      Will Made In Contemplation
Permits provision regarding future spouse prior to marriage, but only if it is clear that that is the testator’s intention.
* Regardless of marriage occurs eg. If die before marriage – b/w date of contemplation of marriage and marriage.
Specific – “Made in contemplation of my Marriage to (Reference to a specific person)
                                                                45
Re Coleman (1976)
T gave real property and personal “unto my fiancée, Mrs. Muriel Jeffery” Then married her 2 ½ months later.
Held: Not a will expressed to be made in contemplation of marriage.
Found 3 types of cases:
    1. General Contemplation – just generally in contemplation of some marriage not a marriage. Not saved.
    2. My Wife cases – where T describes as wife someone who is not married to him – wife is present tense. Not
        suppose to look at actual intentions, but rather intentions expressed in there wills. Not saved.
    3. My Fiancee cases – Some cases say not enough, may have only been to provide while she was the financee.
        Here found that word Fiancee means engaged to be married, contemplation of marriage is inherent in the word in
        ordinary parlance. Connotes existing status and contemplation of marriage.
        Found that it is the will as a whole that must be made in contemplation of a marriage. Look at what was
        expressed in the whole will.
        More strict: Mere expression of contemplation not enough would need more – that will as a whole made in
        contemplation.
* English legislation made less strict – if made while intentending marriage is enough, not similar in Canada. Ontario Act
must contemplate to a particular person.

ii.       Election
Allow the will to stand despite marriage if the wife elects to take under it.
16. A will is revoked by the marriage of the testator except where,
(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within
one year after the testator's death in the office of the Estate Registrar for Ontario;
Re Brown and Dobrotinic (1958)
T made will leaving all property to Katherine, then married her. Filed an election in the wrong place.
Held: Election properly made, will not revoked by failure to file in correct office.
Widow immediately indicated her intention to adopt the will – filing is directory and does not go to the substance of the
legislation.
* Now file in the Estate Registrar for Ontario

iii.     Power of Appointment
A right given by the owner of property, (the donor) to another person, (the donee of the power) to dispose of, or appoint
the donor’s property. Delays disposition.
General – allows appointment to anyone including themselves, the donee
Special – allows appointment among a specified class of pers
Hybrid – special class that excludes one or more people

16. A will is revoked by the marriage of the testator except where,
(c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass
to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died
intestate.
Re Gilligan (1950)
T made a settlement in contemplation of marriage – he retained power to appoint half in event there were no kids – to be
given as though intestacy w/o marriage, if no appointment. Wife died – gave to executors and residue to nephews and
nieces. Then married again, predeceased second wife. Whether the part exercision power of appointment remained,
regardless of revocation of will due to marriage.
Held: Grant admin, power of appointment unrevoked.
Only exception to the rule that a will is wholly revoked by subsequent marriage is in so far as such will exercises a power
of appointment, where instrument provides that in default of appointment does not pass as though on intestacy --- here
excludes spouse, so differs.

iv.     Divorce

17(1)     Not revocable due        17. (1) Subject to subsection (2), a will is not revoked by presumption of an intention to
          to change in             revoke it on the ground of a change in circumstances.
          circumstances

(2)       Exception on             (2) Except when a contrary intention appears by the will, where, after the testator makes
          divorce                  a will, his or her marriage is terminated by a judgment absolute of divorce or is declared
                                   a nullity,
                                   (a) a devise or bequest of a beneficial interest in property to his or her former
                                                               46
                                 spouse;
                                 (b) an appointment of his or her former spouse as executor or trustee; and
                                 (c) the conferring of a general or special power of appointment on his or her former
                                 spouse, are revoked and the will shall be construed as if the former spouse had
                                 predeceased the testator. (Eg. If residue to spouse if survives, to kids if not – then goes
                                 to kids)
* Divorce does not revoke an entire will – only provisions which relate to that prior spouse -- s.17(2) only comes in on
divorce – not during separation.

Re Billard Estate (1986)
T left to “my spouse Gertrude Alva Billard” Made the will after separation, but prior to divorce. Whether divorce revoked.
Held: No contrary intention by the will – so revoked.
Wanted court to consider the surrounding circumstances, but not what is required by statute is a - contrary intention which
appears by the will that is by express provision or necessary implication.

b.) Revocation By Act of the Testator

SLRA      General                 15. A will or part of a will is revoked only by,
15        Revocation              (b) another will made in accordance with the provisions of this Part;
                                  (c) a writing,
                                         (i) declaring an intention to revoke, and
                                         (ii) made in accordance with the provisions of this Part governing making of a will; or
                                  (d) burning, tearing or otherwise destroying it by the testator or by some person in his or
                                  her presence and by his or her direction with the intention of revoking it.


i.      Generally
T may revoke a will by subsequent document in which he or she declares an intention to revoke it, a new will or codicil. Or
by destroying it.

a.) By Document:
Subsequent document must be made in accordance with the statutory formalities required to make a will. Can revoke by
holograph or privileged. If it is a will or codicil not necessary to declare revocation, though most due, as long as intention
to revoke.
Implied revocation - If no revocation clause, and second does not cover all, can admit both to probate and first is regarded
as revoked as far as inconsistent with second.
Re Davies (1928)
By clause 8 T devised “all my farms and lands in the parish of Bedwas in the County of Monmouth” upon trust to the
defendant. Then made a codicil in which said bought Farm A in parish of Bedwas, and devised to daughter, for lie,
remainder to grandson. Remainder failed – pass under clause 8 or fall into residue.
Held: Undisposed of interest in Farm A passes under clause 8.
Farm A remains within wording of clause 8, except to extent that elsewhere disposed. Codicil only makes first partially
inoperative. As far as not altered by codicil clause 8 devise remains.

Notes:
a.) once a gift is expressly revoked – it stays revoked, gift fails; but if inconsistent then when gift fails the gift in the first
stands.
b.) “This is my last will” does not revoke earlier unless that is what T intended.(Lemage v. Goodban)
c.) If T did not intend to revoke earlier will court ignores revocation clause (Matzelle Estate v. Father Bernard Prince
Society)

b.) By Physical Act
Will must be actually destroyed - Need intention to revoke and actual destruction.
Cheese v. Lovejoy Just writing will is revoked and putting a line through, but keeping --- does not revoke the will,
Symbolic burning will do nothing, symbolical tearing will do nothing, nor will a symbolical destruction.
A T cannot ratify a prior destruction.

Destruction by a testator:
Need complete destruction. If partly torn, but contents remain legible, presumption that tearing by testator, but the burden
of proving that it was done animo revocandi is on the person alleging revocation. If parts cut out, not revoked (except to
extent of cut parts) unless the rest of the will cannot stand without the parts cut out.
                                                                  47
Leonard v. Leonard (1902)
T’s will consisted of 5 pages. Destroyed, then replaced sheets one and two with new ones, all signed.
Held: Will invalid – no other will then out on intestacy
The remaining 3 sheets would be unintelligible without sheets 1 and 2. Destruction of 1 and 2 had the effect of destroying
the validity of the whole will. Did not intend 3,4,5 to operate alone, that’s why redid 1 and 2. --- up till this point revoked.
First two sheets and signatures only identifying if the will was valid at the end. The later sheets had no effect by
themselves and they had no effect to render the sheets 1 and 2 operative.
* Note: Substantial compliance legislation (As in Manitoba) would have been useful here.

Destruction by another:
If T left will with another for safekeeping, ex. With solicitor. If they want another to destroy it must be done in the presence
of T, at his or her direction. Can not ask to do it over the phone.
Delack, Hickey and Camp v. Newton (1944)
T sent will to sister in a sealed envelope marked “not to be opened until my death.” A new will was made, that one also
sent to sister. T asked sister to destroy old one. The sister had compared the two, only change was to executors. Sister
then destroyed old will. When tried to probate the second found not properly executed.
Held: The first will was not lawfully revoked.
Was note destroyed in presence of T, and then allowed old assuming that it had been properly executed, nothing
rebutting this presumption.

Alterations in a Will:
Any changes in a will are presumed to have occurred after execution – onus on those alleging changes existed when will
executed to prove.
Three Ways to Change:
    1. Codicil – formal way
    2. Need to be in accordance with statute – attestation.
    3. Practically - if alteration totally obliterates the words, so they are not apparent, it effectively revokes them
         regardless if no signature in margins, see Re Douglas below

18(1)     Alterations in    18. (1) Subject to subsection (2), unless an alteration that is made in a will after the will has
          will              been made is made in accordance with the provisions of this Part governing making of the will,
                            the alteration has no effect except to invalidate words or the effect of the will that it renders no
                            longer apparent.

18(2)     How validly       (2) An alteration that is made in a will after the will has been made is validly made when the
          made              signature of the testator and subscription of witnesses to the signature of the testator to the
                            alteration, or, in the case of a will that was made under section 5 or 6, the signature of the
                            testator, are or is made,
                            (a) in the margin or in some other part of the will opposite or near to the alteration; or
                            (b) at the end of or opposite to a memorandum referring to the alteration and written in
                            some part of the will.


Re Douglas (1986)
T provided that if wife predeceased him/or w/I 30 days and son needed home, to go to son Leslie, otherwise to be sold
and divided amongst three kids. Prior to his death T white-outed the part about home going to son if he needed,
obliterating it – did not sign or initial.
Executrix sought to prove will, including the obliterated words, for still legible.
Held: Revoced that section, Here white out obliterated – can not be deciphered or use extrinsic evidence.
If apparent words must be taken to form part of the will, if not apparent, no extrinsic evidence can be admitted to show
what in fact they were.
Apparent – means optically apparent on the face of the will itself. A word or phrase is not apparent if an expert cannot
decipher it by any natural means – holding to the ligt, or using magnifying glass. Can not use extrinsic evidence or
phsyical interference (chemicals, removing paper glued or infra-red).

Notes:
A codicil made after a will altered w/o necessary formalities makes the alterations valid.

Distinguishing b/w a codicil and an alteration:
Re Manuel
Codicil prepared – then written on face of will itself.
                                                               48
Clause in a type written will – in the middle of the clause the testator wrote in his handwriting the words REVOKED – with
a date and signature
Held: Not a valid alteration – no attestation; but found to be Holograph Codicil “Revoke” has a clear meaning on its own –
in handwriting of testator, signed by testator.
* A codicil can stand on its own; An alteration can not stand on its own.

c.) Conditional Revocation
Three types of conditional revocation:
     1. Testator Believes the Will is Void
If a valid will is destroyed b/c the testator believed at the time of the destruction that it was not a valid will, then the will is
not revoked, because the testator had no intention of destroying a valid testamentary document.
Giles v. Warren – T destroyed because friend told him it was not valid, but when friend left, T gathered back up and put
somewhere safe.
     2. Mistaken about the Facts OR the Law
If destroy due to a mistaken belief as to the facts or the law the will is not revoked.
Mistake of Law:
Re Southerden – Destroys will after returning from trip in mistaken belief that wife gets all his property on intestacy
anyways.
Mistake of Fact:
Re Sorenson; Montreal Trust Co. v. Hawley (1982)
T gave 70% of residue to her cousin Mrs. Lillian Swan, if she survived her, if she did not, to go equally to her husband’s
sisters Mrs. Lillian Schioler and Minnie Christensen, who survive, in equal shares per capita, in NZ. Thought both sisters-
in-law died, so substituted by codicil her friend Mrs. Gerda Hawley for their names. One sister-in-law survived.
Held: Mrs. Lillian Schioler takes the whole 70% - as surviving sister-in-law.
A revocation which is shown to be made upon a mistake of either fact or of law, and is considered by the Court not to be
intended by the T except conditionally on the mistaken assumption being correct, is inoperative. Here actually stated –
sisters dead, so substitute.
     3. Dependant Relative Revocation
If old will revoked in anticipation of creating new will, but intends the revocations shall not be effective unless and until the
new will takes effect, the revocation is not effective. Old will remains effective if new one not made or fails. Intention must
be Clear that old one revoked conditionally.
Re Jones (1976)
T devised property to nieces, then attempted to change the devise to the children of a nephew. But T died before solicitor
able to make the change. The will was found mutilated, devises to nieces cut out, as well as signature and attestation.
Held:
Trial – dependent relative revocation – b/c going to change.
CofA –
The fact that at the time of mutilation T intended to make a new will, is not conclusive of question as to whether his
intention to revoke was dependent upon his subquently making a new will. But disinheriting one may not depend on
benefiting another – may just want to disinherit.
Need to look at the circumstances – if wholly referable to new will – then dependent relative revocation. If uncertain
whether intended to revoke it – then assume T intended to revoke.
Evidence that T upset at D’s and her sister, and no longer wanted to benefit them, wanted nephew instead, because he
was good to her. And other conversations.
Also – she knew destruction was not a pre-req., she had other wills shich contained revocation clause.
She wished revocation, regardless of making new will.

Re Itter
T had pasted strips of paper over certain legacies, and written new amounts on the strips – no attestation. Only by
infrared could you read below – but court held that T would only want to revoke old, if new amounts were valid. Since they
were not doctrine of dependent relative revocation applied and infra-red photographs were admitted to determine original
intention.
Re Bolton and Hess v. Toronto General Trusts
T burned will on stove, meant to make a new one, died 2 years later, had not gotten around to it.
Held: Not dependent relative revocation, Merely contemplating the making of a new will does not suffice.

d.) Revival of Revoked Wills




                                                                 49
SLRA      Revival            19. (1) A will or part of a will that has been in any manner revoked is revived only,
19                           (a) by a will made in accordance with the provisions of this Part; or
                             (b) by a codicil that has been made in accordance with the provisions of this Part,
                             that shows an intention to give effect to the will or part that was revoked, or,
                             (c) by re-execution thereof with the required formalities, if any.
                             As to part formerly revoked
                             (2) Except when a contrary intention is shown, when a will which has been partly revoked and
                             afterward wholly revoked is revived, the revival does not extend to the part that was revoked
                             before the revocation of the whole.

21        When revived       21. When a will has been revived in the manner described in section 19, the will shall be
          will deemed        deemed to have been made at the time at which it was so revived.
          made


Revoking a will with intention of replacing it with a prior one and assumes that the revocation has that effect. But a
previously revoked will can only be rived in accordance with s.19 SLRA. But if T intended revocation, only if previous one
would be revived – then dependant relative revocation can be used.
Re Ott (1972)
T gave benefits to wife, then fought – he changed will - then separated, offered to change the second will back. T then
went to solicitors office and tore it up in front of him, solicitor telling him he didn’t think that would work.
Held: Second will not revoked.
Found that only destroyed believing it would revive the earlier will.
* Once a will has been validly revoked, whether conditional or not, a priror will is not revived, even if that was T’s intention.
A will can only be revived by s.19.

ii.     Related Matters of Proof
Declarations of Death Act 2001
Where no proof that person is dead – Testator or beneficiary
Common Law
    a. Need a 7 year continued absence – then could bring application
    b. Where one presumed dead from a specific set of facts eg. Plane crashes/Disappears in a storm

New Statutory Process
Single application for all purposes
Obtain a court order declaring a person dead - where it is reasonable to presume death
Interested person is broadly defined – eg. Admin estate, life insurance policy
s.2 - Interested person can apply to the court with notice to any other interested person
* Order is not binding on an interested person who did not get notice of the application
Court can make an order if:
     a. 7 yr continued absence --- then use date of court application
     b. Disappeared in circumstances of peril – where one could reasonably presume death from a specific set of facts ---
          try to decipher the date of death.
* Court has discretion to order a different date if it is just to do so.
s.4 – revocation if it is found out that a person is alive. In deciding whether to make a revocation order – will consider all
the circumstances including any inconvenience or hardship subject to the order. Any assets not yet distributed – then still
the deceased property, and is held in trust.
s.6 Subject to certain exceptions, if an order made and all or part of the estate has been distributed, the distribution is final
– and individual not entitled to recover the distributed property.
(3) The Court may, if it is just to do so, can make an order requiring an individual to re-convey --- balancing of rights – b/w
testator and beneficiary.

Absentees Act
    - not enough to show peril
    - not yet 7 yrs
Person with an interest can get someone appointed to look after that absentee’s estate or interest in an estate.
(s.3 DDA – If an application is made to declare a person dead, but court not satisfied, then the court may make an order
under the Absentees Act)

Proof of Lost Wills
Know testator did a will, just can’t find the original – Can still ‘prove’ the will.

                                                                  50
Will require proving the will in solemn form

Three Issues:
    1. Was there due execution of will established?
    2. Were the contents of the will satisfactorily proved?
    3. Does the evidence rebut the presumption of destruction by the testator animo revocandi?
* Most cases now have a photocopy – would take care of #2, maybe #1 if find witnesses.

Animo Revocandi Presumption – where an original will last traced to be within the possession of the testator, but can not
find, then presume that they destroyed it with intention to revoke. Need to bring evidence to rebut this presumption.

Lefebvre v. Major (1930) SCC
Trial: animo revocandi rebutted
C of A: Reveresed
A will drawn, then name of T on it changed, then T moves, requests it be sent to him. Informed lawyer before sending that
did not want brother-in-law (an executor) money gifts honoured. Had left everything to sister, still on good terms and told 2
witnesses she got everything.
Looked at all three issues:
Held: Allowed to probate
    1. Due Execution: proved
Execution of first will (prior to sending) proved/ second not so sure – but same contents, so doesn’t matter.
Do not need to know specifics – if says a witness assume the formalities, particularly where a solicitor.
    2. Contents: proved
Evidence absolutely clear – contents stated by person who heard will read, corroborated by letter to sister.
    3. Animo revocandi: Rebutted
T received the will + can’t find it = animo revocandi.
Some evidence that unpleasantness b/w T and bro-in-law. But idea that destroyed the will inconsistent with evidence of
two separate witnesses that gave all to sister.
The will was important to him, may have been on him (decomposed, so burned the sheets and bed)
So improbable that intended to destroy it.

Re Oliver Estate
T made a will – legacy to friend and daughter, executor a Trust Co. Made a codicil – changed executor to friend. Trust Co.
sent her the will. Shortly before death referred to will as a ‘good will’ Only codicil was found. But solicitor had a copy of the
will.
Held: Granted the application
#1 and #2 – not a problem.
Problem: Will last traced to T and can’t find = presumption of animo revocandi
Presumption was rebutted:
      1. Will was eminently reasonable
      2. Will referred to by Testatrix as a good existing will
      3. No evidence in any change in attitude or circumstances indicating that would want to change the will
      4. Testatrix a residence in nursing home – will may have been lost during her life, or after her death




                                                               51
                                                Administration of An Estate

Disposition of Parts of the Body

The manner in which a person’s remains are disposed of, is in the legal authority of the representative of the estate –
executors or trustees.
Saleh v. Reichert (1993) Ont. Ct. J. T muslim, he and executor wanted cremation. Court allowed for “…religious law has
no bearing on the case…..I agree…that there only legal obligations” Executor’s right over wishes of next of kin and even
deceased. As long as dignified and reasonable.
Executors right at common law to deal with the body of the deceased continues after the burial of the body (Waldman v.
City of Melville (1990) Sask.Ct.)
Also legislation regarding organ donation – Human Tissue Gift Act.

Consider Fara Kahn and mother/child died in basement – who gets control of remains – goes out like intestacy.
Story – Siblings giftting over father’s remains – Brother wanted ashes to sprinkle them over his home-town. Sister didn’t
want them but used them to bargain – she was legal rep. Got a settlement.

                                                      Administration
Definitions:
          estate trustee: an executor, administrator or administrator with the will annexed
          estate trustee with a will: an executor or an administrator with the will annexed
          estate trustee without a will: an administrator

Common provision in wills to appoint “an executor and trustee”
Executor and trustee are two separate roles
 in most cases the same person is appointed as executor and trustee –
   Trustee’s main function arises when there are trusts as part of the estate
   Executor - housekeeping work to get the estate in order so that ultimate distribution of the assets can occur –
   example: disposing of the remains of the individual; identify the assets of the estate and realise those assets
   (recognise and take control of the assets); pay debts; defend any claims; bring claims on behalf of estate;

A grant – nothing more than a certificate confirming the appointment
Various forms of grants:
 Certificate of appointment of Estate Trustee with a will – normal will or will but no named executor
 Certificate of appointment of Estate Trustee without a will – on intestacy
 Estate Trustee during Litigation – where there has been issue raised of validity of will – may have executor in will but
    don’t know if will is valid so court will appoint someone to manage assets during that period – often a trust company
    will be appointed.
 Litigation Administrator – where someone wants to bring a claim against the estate and no one has been confirmed as
    executor of the estate.
Grant – if the estate is small and uncomplicated, if there is no dispute as to the validity of the will, and if members of the
family can agree to the division of the property, it is not necessary to obtain a grant. But other cases, impossible to deal
with without a personal representative.

Executor – takes his or her authority not from the grant of probate but from the will – so no lag in time. But no action by or
against until obtained a grant of probate.
Administrator – is appointed, but title relates back to the death of the deceased. Until appointed likely rests with the judge.

Executors Year
Suggests that in an estate of average complexity, it could take up to a year before assets are ready to be distributed.
Beneficiaries should know this.

Duties Once appointed personal representative:
    - To dispose of the remains, so long as in reasonable and dignified manner (Burial, Cremation) – not bound to
        follow the instructions of the deceased
    - If lawsuits against estate, or by the testator – responsibility to pursue, prosecute or defend.
    - To identify and realize the assets (To identify and take whatever steps necessary to bring them under your control
        – additional documentation to get legal title)
    - Obligations (common law) to liquidate (wasting assets) or Not to liquidate (asset given to someone in specis) -
        most cases in will says ignore these rules.

                                                              52
    -   To pay off all debts and liabilities
        Payment of taxes
    -   To get estate ready to be distributed OR establish certain trusts
        If a minor a beneficiary, and will does not establish a trust, permiting the executor to pay the minor share to the
        trustee of the child. Then must pay that share into court, to be administered by the office of the Children’s lawyer.

Payment of Debts
Ranking:
   - Testamentary expenses take highest priority – funeral consts, admin estate costs, executor expenses
   - Creditors – Secured
   -
       Priority:
       1. Personalty is primary fund
       2. General persona estate not bequeathed or residue
       3. Real estate devised in trust to pay debts
       4. Real estate descended to an heir and not charged with payment of debts
       5. Real or personal estate charged with payment of debts
       6. Pecuniary legacies
       7. Specific legacies
       8. Real and personal estate
       9. Paraphernalia of the testator’s widow.
   - Equalization
   - Support Obligations (unless a child)
   - Beneficiaries

2 potential types of legal obligations that legal representative could be personally exposed to:
        1. creditors
        2. tax department

Notice of Creditors and Others - If unsure of creditors must publish in a newspaper in jurisdiction in which deceased
resided or had business, with sufficient circulation (3 weeks in a row)
Usually give 1 month after first published.
    - advices creditors & protection for executors
    - puts a time limit on when people can forward certain claims --- creditor pops up later can’t be held liable.
    - It can be expensive --- so just get indemnity from beneficiaries


                               Estate Administration Tax Act – Planning Considerations:

Tax Consequences
No longer have federal (Death Acts abolished 1978) estate taxes or provincial succession on death Acts (eliminated 1972)
--- other forms

Provincial = Estate admin taxes/probate taxes

Federal = Tax on capital gains (increase in value of asset, during which owned by an individual)
Some things have capital gains tax - Eg. Capital property - real estate and shares of a company.
Others will not - Eg. Of other assets that don’t change in value: GIC, term deposit.

Example:
If gift to someone at arms-length – deemed to have been sold – so owe percent of capital gain.
Death – Deemed Disposition on Death - Individual deemed to have disposed of all of his/her property immediately before
death. So that Death Tax = Capital Gains tax. The Beneficairy who then receives – gets fair market value, taxes have
been paid --- B starts a new increase
Ex.        A – bought at 100 – increased to 500 (died, willed to B); taxed on 400 increase
           B starts at 500

Principal exception: where the asset is left to a surviving spouse, that capital gain does not have to be recognized but is
deferred until either the spouse disposes of the property or dies and then it will be recognized. Two ways in which you
can qualify for that deferral - 1. Leave it to spouse in will or 2. If the cottage is left in trust for the spouse and the


                                                             53
provisions of the trust (qualified spouse trust): during lifetime of the spouse, the spouse has to receive all the income
generated from that trust.

Exception regarding ‘principle’ home: any increase in home not taxable
Exception to ‘principle’ home exception: Where capital property is transferred as a consequence of death to a spouse
(will, intestacy) that accrued capital gain is deferred until spouse dies or sells the asset.
Two ways – will says that certain real estate goes to wife; or if left in a qualifying spouse trust [testamentary trust - trust
that provides that surviving spouse has to receive all income generated from that asset and during the lifetime of the
spouse no one other than the spouse is entitled to receive any of the capital/principle of that asset.]

Reasons why leave asset in Trust
   1. Don’t trust spouse
   2. Subsequent marriages – want her to have in life, but then to his children
   3. Protection for spouse – avoids possibility of someone losing the property through undue ect.
Where outright – then start at initial buying ex. 100 – who pays --- surviving spouse
Where trust – then estate of spouse who died will pay the capital gain tax, not the surviving spouse

Probate fees/Admin Estate Taxes – to get required certificates, applications for personal representation need to pay
probate taxes. While derive authority from will, practically need certificates or letters of probate.

Probate fees/Admin Estate Taxes – based on value of estate at time of death:
Excludes:
    - Anything owned JT
    - Any asset which has a designated beneficiary (insurance)
    - Mortgage debts in Ontario --- need only include equity in home
Does NOT deduct other debts:
* Could possibly have insolvent estate (debts > assets) and still have to pay probate taxes

Two Tier Scheme
½%            ($5 on every 1000)                   up to 50 000
1½%           ($15 on every 1000)          over 50 000

Should reverse – back to ½%. No one used to care – now people trying to avoid, and losing revenue.

Capital Gains Tax
Only calculated on increases in value
More worth while to try to minimise
1 mill of capital gain = 250 000 taxes

Use of Will Substitutes to Avoid Probate Fees
Re Eurig Estate
Executrix brought constitutional challenge to fee saying an indirect tax, it’s a fee, that’s not fair b/c service the same no
matter what.
Trial: Dismissed
CofA: Dismissed, nothing wrong with fee structure
SCC:
Unconstiutional/Ultra vires – seeks to impose a tax w/o clear authorization from legislation.
s.92(2) Constitution Act – province can only levy a direct tax, not indirect
Concluded this charge is a tax not a fee – but could not allow through regulations.
Gave them 6 mths - now a tax under the Estate Administration Tax Act, 1998.

Ways to Avoid Probate Taxes:
     1. Make inter vivos gifts to persons to whom the person might otherwise have left testamentary gifts.
     2. The person can transfer property into the joint names of the donor and donees
Example: home being the principle residence and thus exempt from capital gains tax; assume the cost is $200,000 and
the current fair market value is $500,000 – when she dies and the assets go through her will then she has to pay probate
taxes – if transfer title to home from her name to child’s name and her name as joint tenants then the house passes by
right of survivorship (not through the will) thus no probate taxes have to be paid – assume mother dies 5 years later –
assume the house is worth $700,000 – when title is transferred it is not the daughter’s principle thus now a capital gain
which is taxable- may incur income taxes that are worse than probate.
Other Problems: Lose control, creditors, Eliminates a potential source of liquidity.
                                                               54
    3. Transfer property under inter vivos trust for the benefit of donees – RRSP’s
Example: Dad with 3 kids – told to put in RRSP designate to one, and then they just split it. The daughter whom it was
designated to said no way and kept, while estate had to pay the taxes on it.
    4. Multiple wills – anything which needs to be probated in one (real property , publicly-traded shares, life insurance)
       Granovsky Estate v. Ontario – approved of this method.
    5. Alter ego trust – from income tax act – taxpayer, over 65, then will be only receipient to obtain until death/ can do
       it for joint spousal as well.
    6. Transfer to a Corp. – again tax consequences
    7. Transfer to another province with low probate taxes – then probate there

Granovsky Estate
Testator owned multimillion dollars through Co. and he also owns directly other assets – as such usually need probate for
these assets. When probate – do you have pay taxes on entire will – or just the directly owned assets, which require a
probated will.
Held: Did not have to probate the one will
So long as you have structured your affairs by having two separate wills – those in which you need probated, and second
one which don’t need probate --- then don’t have to probate the unnecessarily probated will.
* Great decision for tax payer – abandoned the appeal
Where ever a person owns shares of Co – say lets do two separate wills
Ensure:
    - Each will refers to the other, otherwise subsequent would revoke earlier. Say to act contemporaneously.
    - Also need to define where different expenses to come from.

Problems: If Co. owns home, then lose primary residence label, tax advantages of such a label are gone.

Bare Trust
If have 20 people owning, don’t want 20 on deed, so set up a Co. to hold title to property – Co. holds legal title to property
in trust for beneficial owners. Transfer legal title of assets to Co., but not beneficial ownership. On financial institutions,
registry ect. Will show transfer of legal.
Advantages
     - Gets all assets into name of Co., so won’t care about specific individuals as long as Co. signs
     - For income tax purposes has beneficial ownership of assets, so can still claim principle residence, would just
           need to show a bare trustte org.
     - Still testators assets, still has to report for income tax purposes
If did all this would only need one will.

Income Taxes
    - s.159(2) requirement of paying a clearance certificate, whereby Revenue Service states that all paid, no
         outstanding. Arises in liquidating, or any charge of another’s assets, as well as executors.
    - If you don’t – the Tax department can look to the executor to personally satisfy any income tax liability owing.
    - Lengthy period to receive the certificate, can not even request until income tax filed and assessed, 3 – 6 mths,
         then request for certificate, has taken up to a year or more.
    - Bank/Trust Fund ect. – will do a interim distribution, with hold back if need to cover the contingent liability.
Alternatives:
o It is possible to get interim certificates – up to the terminal T1 return; generally the estate return is simple – thus only
    real issue is up to the terminal T1
o Another alternative: distribute bulk of the estate but reserve some of the estate until get clearance certificate
o Another alternative: ask for the beneficiaries to give estate trustee an indemnity – be careful: are they going to honour
    the indemnity voluntarily? (tax authorities will go after estate trustee; estate trustee has to go after beneficiaries); also
    what is the indemnity worth? do they have the money to indemnify you?



                                      Estate Accounts and Executor Compensation

Beneficiaries challenge the actions of executors on two different grounds:
    1. Actions – For example: did not like investments, didn’t maintain impartially b/w income receipient and person who
        got remainder, filed tax returns late, paid professionals too much to do their responsibilities.
    2. Compensation – May argue that paid themselves too much
Estate Accounts – records of accounts


                                                               55
Passing of Accounts – an application to have the accounts of the executor approved by the court. Generally informal
proceedings, though judge has authority to direct the trial of an issue if facts in dispute.
    - Can volunteer passing of accounts – so can approve compensation, for unless in will, if all beneficiaries consent,
       or on passing of accounts
    - Beneficiaries can compel – easy way to commence legal proceeding under Rules of Civil Procedure – good for
       getting information.

* The prescribed format will cost about $5000 to prepare. If can get all to agree, get a release and don’t worry about it.
Unfortunately if not all beneficiaries are of age, or capacity then can not all give valid consents – the PGT or Children’s
lawyer will not give these types of releases.

Can be multiple passing’s of accounts
   - if outright distributions – then only 1 at wrap up
   - if trusts – could go on for years; average about every 3 – 5 years.

Nature of Accounts
   - very prescribed format – in supplementary materials (Under Rule 74.17)
            o Statement of Assets at Date of Death – cross referencing
            o Statement of receipts – came in/Statement of disbursements – what went out.
            o Trusts – Income beneficiary and Capital beneficiaries – where both in the will – have to be 2 separate
               statements of receipts and disbursements.
            o What were the unrealized/undisposed of assets must be listed
            o List of liabilities at the end of period
            o Statement of Compensation that Executors are claiming

Compensation
If in will or trust – this is an absolute limitation upon the allowance, court will not look into reasonableness (s.62(5)).

Trustee   Allowance to       Allowance to Trustees:
Act       Trustees,          61. (1) A trustee, guardian or personal representative is entitled to such fair and reasonable
61(1),    Guardians,         allowance for the care, pains and trouble, and the time expended in and about the estate, as
(3) &     Personal           may be allowed by a judge of the Superior Court of Justice.
(4)       Reps               Allowance to personal representative for services:
                             (3) The judge, in passing the accounts of a trustee or of a personal representative or guardian,
                             may from time to time allow a fair and reasonable allowance for care, pains and trouble, and
                             time expended in or about the estate.
                             Allowance to barrister or solicitor trustee for professional services
                             (4) Where a barrister or solicitor is a trustee, guardian or personal representative, and has
                             rendered necessary professional services to the estate, regard may be had in making the
                             allowance to such circumstance, and the allowance shall be increased by such amount as may
                             be considered fair and reasonable in respect of such services.
                             Where allowance fixed by the instrument
                             (5) Nothing in this section applies where the allowance is fixed by the instrument creating the
                             trust.


Re Jeffrey (Trio) (1998, Ont. C of A)
Endorsed the tariff approach to determining compensation, but held that the five factors of Toronto General Trusts should
be used as a cross-check.

Step 1:
Percentage Approach – Maximums
5%      Capital Income
        -2½ %          Income receipts in
        -2½            disbursements out
5%      Income compensation
        -2½ %          Income receipts in
        -2½            disbursements out
2/5ths of 1%           Care and management fee – annual (should be pretty automatic)



                                                                56
* Where executors did something above and beyond their duties – instrumental in settling something that would have cost
a lot - Special fee
* Problem with tariff – compensation will differ dramatically depending on how large the receipts – even though the same
amount of work as with smaller receipts.

Step 2:
Cross-Check
Re Toronto General Trusts Co and Central Railway (1905)
Outlines factors a court should take into account – the five-factor approach to determining compensation:
    1. Magnitude of the trust (objective)
    2. Care and responsibility
    3. Time occupied in performing duties (objective)
    4. Skill and ability displayed
    5. Success

* Can incorporate a fee agreement by reference into will – trust co. do this and will have higher percentages – s.61(5) will
apply.

* When a lawyer acting as an executor – Courts will scrutinize their legal fees – won’t allow any doubling up. If a lawyer
does estate/admin work should be deducted from claimed compensation by executor.

Wagner v. Van Cleeff (1991) Ont. Div. Ct.
If you assume the obligation of estate trustee; then have obligations – cannot abdicate responsibilities by hiring solicitors
and experts
No will was found. M (lawyer) recommended the appointment of V as W’s administrator of the estate. V became the
estate trustee. Provided M a general power of attorney and left things in his hand; M stole money from the estate;
beneficiary went after V. beneficiary alleged that V improperly discharged his duties as administrator by selecting M as
solicitor, by delegating all administrator functions to him and by failing to supervise him properly
Held:
Trial: V had not acted improperly – he had no reason to suspect M’s integrity, and that he never assumed the duties of an
administrator. Even if had assumed the duties of an administrator, he would nonetheless be relieved from personal liability
as permitted by s. 35 of the Trustee Act because he acted fairly and reasonably and ought fairly to be excused for his
breach of trust
CofA: Although an administrator may select agents to perform certain tasks when it is prudent in the ordinary course of
business to delegate those duties, an administrator may not delegate all of his duties as this amounts to a complete
abdication of his responsibility.
An administrator who puts the assets of an estate in the hands of an agent and takes no steps to ensure that the assets
are properly dealt with has breached the duty to supervise
Although V acted honestly, he did not act reasonably; an administrator must do some minimal supervision.
Although V did not accept remuneration as an administrator, he did not even meet the minimal stand of care for gratuitous
trustees
No relief under s. 35 – an administrator who chooses to accept the judgement of others, without any independent thought
or inquiry, deprives himself of protection a court might give from personal liability under s. 35


                                                     Solicitors Duties
A. In Taking Instructions:
Duty to satisfy themselves that T has capacity, that T had knowledge and approval of the contents of the will and that
there is no undue influence
This is an even greater duty when instructions are taken from someone other than T.

If not satisfied CofA says lawyer can refuse (Hall v. Bennett)

Re Worrell (1970)
T left almost entire estate to Mr. And Mrs. Barfoot and family. Mr. Barfoot prepared the letter of instruction T signed, took it
to a solicitor unknown to T then gave it to Barfoot to execute.
Witnesses said competent and very fond of Barfoot’s.
Held:
Court commented that the solicitor’s conduct acted inappropriately: prepared a will for man he never saw, without any
knowledge of estate, leaving substantial portions to person who gave him instructions, allowed person who gave
instructions to take the will to have executed, made no records.
                                                              57
    -   in day of speedy transportation there should be no occasion when a solicitor prepares a will w/o receiving his or
        her instructions from T.
    -   should not ask leading questions, but more open ended.
    -   Need to make full docket entries – preserve notes of T’s intentions.

Wilson v. Kinnear (1925)
Will prepared with a life interest to husband, T said no wanted it to be an absolute interest. Lawyer re-drafted. But then got
instructions over the phone to change back. An articling student sent to her bedside to have it signed.
Found: It was the solicitor’s imperative duty to make himself sure that the change was truly the wish of T, not someone
else impressing upon the dying woman.

Duty of Care Towards Beneficiaries:
Wittingham v. Crease – Hedley Bryne principle
Where an individual seeks information from person with a special skill or knowledge, that second person, with the skill
owes a duty to the first person.
Son was main beneficiary – solicitor asked son’s wife to attest the will. This rendered the gift void.
Held: Solicitor negligent

Ross v. Caunters
T had solicitors send the will to him to have executed, failed to say that wife of beneficiary could not sign. Then did not
notice the problem when the will was sent to them.
Held: Damages for the loss of the benefit T intended
Not a wide and general duty. Rather, owes a duty of care to second person, if they are within the first person’s
contemplation of being potential injured (torts). A duty, owed to Beneficiary as well as the client to use proper care in
carrying out the client’s instructions for conferring the benefit on the third party – close proximity, the result of a duty of
care, not uncertain.
Used Hedley Byrne b/c the beneficiary knew about the gift and relied on him.

White v. Jones
T was 78, fought with daughters, disinherited them, then a few months later reconciled and wanted them back in. Wanted
                                                      th                                      th                           th
new will prepared – firm received letter on July 17 , nothing done with it until August 16 , appointment to meet Sept 17 --
               th
- died Sept 14 .
Two daughters brought the action
Held:
Trial – dismissed/ CofA – used Ross v. Caunters and allowed appeal.
- In drawing a will the solicitor does enter into a special relationship with the beneficiary
- Rejected Ross v. Caunters – Used The principle in Hedley-Byrne and extended it to cover cases in which beneficiaries
were unaware of the making of the will, extended to beneficiary they may reasonably forsee.
Rationale:
Only people with valid claim have suffered no loss, and only person who suffered a loss has no claim.
The court will have to fashion an effective remedy for the solicitor’s breach of his professional duty in such a way as to
repair the injustice to disappointed beneficiary.

* Lawyers can not use it to attack each other – going too far

                                                Some Rules of Civil Procedure

An Order for Assistance: 74.15 (1) In addition to a motion under section 9 of the Estates Act, any person who appears to
have a financial interest in an estate may move,
Eg.
Order to Accept or Refuse Appointment
(a) for an order (Form 74.36) requiring any person to accept or refuse an appointment as an estate trustee with a will;
Order to File Statement of Assets of the Estate
(d) for an order (Form 74.39) requiring an estate trustee to file with the court a statement of the nature and value, at the
date of death, of each of the assets of the estate to be administered by the estate trustee; [If just want to know assets,
don’t want a full-blown passing of accounts]

Notice of Objection: 75.03 (1) At any time before a certificate of appointment of estate trustee has been issued, any
person who appears to have a financial interest in the estate may give notice of an objection by filing with the registrar or
the Estate Registrar for Ontario a notice of objection (Form 75.1), signed by the person or the person’s solicitor, stating
the nature of the interest and of the objection.
                                                                58
       it is very easy and if anybody raises any question touching on the validity of a will – don’t need to support by any
        extensive affidavit material, just sufficient to say that object to issuance of appointment of estate trustee because
        testatrix was incapable or unduly influenced and show that have some financial interest – don’t need any
        evidence to support the allegations – easy to put a halt to the further processing of the will.
Expiry, Withdrawal and Removal of Notice of Objection
(2) A notice of objection expires three years after it is filed and may be withdrawn by the person who filed it at any time
before a hearing for directions under rule 75.06 in an application for the certificate or may be removed by order of the
court.

Once a notice of objection is filed, it sits there until application for a certificate of appointment – b/f certificate of
appointment a search is doen for notice of objections – through Estate Registrar for Ontario.
Then exchange of notices – Registrar sends notice to applicant – who then sends a notice to objector – who replies as a
notice of appearance – the applicant then brings a motion for directions.

Giving Directions:
- proceduarl order
- summarizes the issues
- sets up time table and court date

14.05 Authority for commencing through application
(3) whole list of issues which can be heard in this manner – lots of estates stuff.




                                                              59
                                            Impact of the Family Law Act (FLA)

Family Law Act 1986
Marriage is viewed as an economic partnership (analogy drawn b/w marriage union and business partnership)
When that partnership ends, for whatever reason, rights crystallize on separation, divorce and death.
On break up the net family property is divided equally between the partners. Such that there is a differed equalization
scheme.

Eg. FLA s.7: The purpose of this section is to recognize that child care, household management and financial provision
are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether
financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization
of the net family properties, subject only to the equitable considerations set out in subsection (6).

Changes:
   1. Impacts on death of a spouse
   2. No longer look at assets in specis – family v. non-family
   3. Primary remedy is a money payments (equalization) – can be satisfied by transfers of assets

Rights provided for
    1. Equalization of NFP (only to legally married, hetero couples)
    2. Support (are open to lots of categories)

Legally married spouse could bring claims:
    - equalization
    - support FLA
    - support SLRA
(Not mutually exclusive, though will influence each other)

1(1)   Definitions –       "spouse" means either of a man and woman who,
       Whole thing         (a) are married to each other, or
                           (b) have together entered into a marriage that is voidable or void, in good faith on the part of a
                           person relying on this clause to assert any right.

4      Definitions –       "matrimonial home" means a matrimonial home under section 18 and includes property that is
       Part I              a matrimonial home under that section at the valuation date; [18.(1) Every property in which a
                           person has an interest and that is or, if the spouses have separated, was at the time of
                           separation ordinarily occupied by the person and his or her spouse as their family residence is
                           their matrimonial home.]
                           "net family property" means the value of all the property, except property described in
                           subsection (2), that a spouse owns on the valuation date, after deducting,
                           (a) the spouse's debts and other liabilities, and
                           (b) the value of property, other than a matrimonial home, that the spouse owned on the date of
                           the marriage, after deducting the spouse's debts and other liabilities, calculated as of the date
                           of the marriage; ("biens familiaux nets")
                           "property" means any interest, present or future, vested or contingent, in real or personal
                           property and includes,
                           (a) property over which a spouse has, alone or in conjunction with another person, a power of
                           appointment exercisable in favour of himself or herself,
                           (b) property disposed of by a spouse but over which the spouse has, alone or in conjunction
                           with another person, a power to revoke the disposition or a power to consume or dispose of the
                           property, and
                           (c) in the case of a spouse's rights under a pension plan that have vested, the spouse's interest
                           in the plan including contributions made by other persons;
                           * Very Expansive definition --- given no guidance/principles on how to value
                           "valuation date" means the earliest of the following dates:
                           5. The date before the date on which one of the spouses dies leaving the other spouse
                           surviving.

Some Problems with Valuation Date:
1. Right of Survivorship Problem
Eg.
                                                              60
                 Husband                                          Wife
                 200 000
                  50 000 JT with wife                     50 000 JT
       NFP = 250 000                                      50 000
* Reality – 50 000 JT goes to wife; so 50 000 less in account

2. JT with Third Party
                 Husband                                             Wife
                 200 000 JT with third party
                  50 000 JT with wife                       50 000 JT
       NFP = 250 000                                        50 000
* Reality 200 000 disappears – won’t have enough to pay equalization
Legislation took this problem into account for life insurance --- but not jointly held property.

If the matrimonial home:
s.26 FLA – If a spouse dies owning matrimonial home with a third person – the JT deemed to have been severed
immediately before the time of death. So husbands estate retains a ½ interest in the matrimonial home. (Ignoring third
party interests, preferring the surviving spouse)
s.26(2) A spouse who does not have an interest in matrimonial home, but occupies it – then the surviving spouse is
entitled to retain possession of that home rent free for 60 days. Little grace period.

Resent C of A – Collier v. Torbar – saying that any debt directly associated with the matrimonial home is virtually ignored
when looking at valued of property at the date of marriage.

Whaley Estate v. Whaley
Father and daughter owned JT – Father died, widow did not elect under FLA.
Father left residue to charities – if s.26 applied even if no equalization then they would have got ½ TC.
Held: Should not be read literally – only if elect on equalization.
Contrast With
Fulton v. Fulton
Property owned jointly with son. Became matrimonial home, when died intestate court held s.26(1) had effect of
converting JT into TC.
Key thing: The husband’s estate had insufficient funds to satisfy the equalization.
CofA Held: It should be read literally – even if equalization can be satisfied from elsewhere.

Problem: What if will of the deceased left the entire estate to the surviving spouse, so elects to take under the will, does
s.26 still apply. What its doing is adding back from the sister --- what happens to the interests of the sister - she was in a
JT – we’re ignoring the third party interests. Or at least prefers that of the surviving spouse.
Proposed Reform – s.26(1) should only apply where the surviving spouse elects equalization.

Bobyk v. Bobyk Estate (1993)
Found that liability of deceased spouse for income tax arising from deemed dispositions immediately before death were
deductible in determining the deceased’s nfp. The liability existed in unquantified form before death and became
quantified on death. While post valuation date events (death) can’t be considered in determining property valued, can be
considered to determine the amount of deductions.
Though the cost of administering estate could not be deducted for only arose after death.

(Confirmed Starkman – said that income taxes due on future disposition of property would be taken into account and
deducted from NFP if disposition in the near future is necessary or likely --- cause of death = necessary or likely.

3. No deduction of expenses that are caused by death (funeral expenses ect.)




                                                               61
EQUALIZATION:
1. Valuation date: s. 4 – VD (5) the day before the date on which one of the spouses dies leaving other alive

2. Property identification: determine what property each property owned on VD
(Homes, money, trusts, pensions)
· note that the definition of property is very broad within s.4

3. Exclusions: then you need to figure what can be excluded from this process (s.4(2))
1. Gifts acquired during the marriage from third person (with the exception of a matrimonial home), AND inheritances
from a third person during the marriage (inheritance b/f marriage - deduction)
2. Income from gifts or inheritances (1) IF the person who gives/bequeaths says that they wish it to be excluded
3. Damages resulting from a claim
4. Proceeds of a life insurance policy received, or right to receive.
5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
6. Property agreed to by domestic contract, etc. (s.2(1) & s.4(2)(6))

Note that the notion of tracing – tracing applies to this notion of exclusions (s.4(2)(5))
But if monies from an exclusion is plugged into the matrimonial home, even though it can be traced, the matrimonial home
swallows that up

Note: Often wills will now contain a provision saying that whatever gifts they devise are meant to go to that person and
income is to excluded from NFP.

4. Assign values: Valuation principles (no statutory guidelines)

5. Deductions: (Onus of proving deductions/or exclusion on person claiming it s.4(3)) include:
· Property owned prior to the MD - value at MD, less debts and liabilities at marriage (although you have to include the
income from that property) [in definition of "net family property" (referred to in 8(a)(b))]
· debts and liabilities owing as of the VD, etc.
· disposition costs which are clearly inevitable, are now deductible (assuming appropriate evidence) [Sengmueller]

6. Equalization: valuation in and of itself is often a whole body of complex calculations – with certain properties
you can't get that on VD and you need experts
· this reaches the net family property value for each party- if one of the parties debts at this point exceeds their
liabilities, it is a deemed zero (s. 4(5)).
· According to s. 5(1), you then take one half of the difference between the greater and the lesser of the NFP, and
give it to the lesser party – this becomes a debt owing rather than a property entitlement - This has made a prima
facie property division

7. The court then looks at whether there are any circumstances that would make it unconscionable to make it a purely
equal property division [s.5(6)]
· The court may award a spouse an amount that is more or less than that amount, having regard to the circumstances:
    - debts (a)&(b) – not disclosed/acquired recklessly
    - (e) period of co-habit – if short
    - (g) contract
    - (h) – any other circumstance relating to the preservation, acquisition or maintenance of the property (catch-all)

Note: Onus for proving a deduction or exclusion is on person claiming it (s.4(3)) – almost need spouses to track their
assets.


Note: Contracting Out
· s.2(10) FLA allows married couple to contract out of certain sections.
Part I & II - apply only to those who have not contracted out.
· s.52(2) can't contract out of provisions of Part III (matrimonial Home) it is unenforceable
Chutter v. Chutter Estate (2000)
If the spouses have reached an agreement about the division of their assets and have renounced any rights to each
other’s estates, including any claims for support and if the survivor has adequate means of support then the court will not
vary the deceased’s will.



                                                             62
Election
Application to Deceased:
Not pure – If surviving spouse has lower NFP they get difference; if deceased NFP is lower their estate does not get the
difference.

FLA    Election:      6. (1) When a spouse dies leaving a will, the surviving spouse shall elect to take under the will or
6(1)   Spouse's       to receive the entitlement under section 5.
       will
6(2)   Spouse's       (2) When a spouse dies intestate, the surviving spouse shall elect to receive the entitlement under
       intestacy      Part II of the Succession Law Reform Act or to receive the entitlement under section 5.
6(3)   Spouse's       (3) When a spouse dies testate as to some property and intestate as to other property, the
       partial        surviving spouse shall elect to take under the will and to receive the entitlement under Part II of the
       intestacy      Succession Law Reform Act, or to receive the entitlement under section 5.
6(4)   Property       (4) A surviving spouse who elects to take under the will or to receive the entitlement under Part II
       outside        of the Succession Law Reform Act, or both in the case of a partial intestacy, shall also receive the
       estate         other property to which he or she is entitled because of the first spouse's death.
6(5)   Gifts by       (5) The surviving spouse shall receive the gifts made to him or her in the deceased spouse's will in
       will           addition to the entitlement under section 5 if the will expressly provides for that result.
6(6)   Insurance,     (6) Where a surviving spouse,
       etc.           (a) is the beneficiary,
                               (i) of a policy of life insurance, as defined in the Insurance Act, that was taken out on the life
                               of the deceased spouse and owned by the deceased spouse or was taken out on the lives
                               of a group of which he or she was a member, or
                               (ii) of a lump sum payment provided under a pension or similar plan on the death of the
                               deceased spouse; and
                      (b) elects or has elected to receive the entitlement under section 5,
                      the payment under the policy or plan shall be credited against the surviving spouse's entitlement
                      under section 5, unless a written designation by the deceased spouse provides that the surviving
                      spouse shall receive payment under the policy or plan in addition to the entitlement under section 5.

6(7)   Liability to   (7) If a surviving spouse,
       personal       (a) elects or has elected to receive the entitlement under section 5; and
       rep if more    (b) receives payment under a life insurance policy or a lump sum payment provided under a
       life           pension or similar plan that is in excess of the entitlement under section 5,
       insurance
                      and there is no written designation by the deceased spouse described in subsection (6), the
                      deceased spouse's personal representative may recover the excess amount from the surviving
                      spouse.

6(8)   Effect of      (8) When a surviving spouse elects to receive the entitlement under section 5, the gifts made to
       election       him or her in the deceased spouse's will are revoked and the will shall be interpreted as if the
       under s.5      surviving spouse had died before the other, unless the will expressly provides that the gifts are in
       - No gifts     addition to the entitlement under section 5.

Note: Must be careful not to elect s.5 if will be receiving greater amount of Insurance money than equalization payment or
will getting less or even be liable to the rep. (6(6) &(7))

Time Periods
s.6(10) – Gives 6 months to file election with Office of Registrar after death.
May be able to extend:
s.2(8) If:
    1. Apparent Grounds for relief – there are certain rights
    2. Relief is unavailable b/c of delay incurred in good faith (mere absence of bad faith is not enough – the fact that
          have not done anything – but say estate has not given you information)
    3. No person will suffer substantial prejudice by reason of delay
* May want to bring the motion b/f 6 mths expires

Distribution & Liability:
6(11) Deemed              (11) If the surviving spouse does not file the election within that time, he or she shall be deemed
       election           to have elected to take under the will or to receive the entitlement under the Succession Law

                                                              63
                           Reform Act, or both, as the case may be, unless the court, on application, orders otherwise.
                           R.S.O. 1990, c. F.3, s. 6 (11).
6(12)   Priority of        (12) The spouse's entitlement under section 5 has priority over,
        spouse's           (a) the gifts made in the deceased spouse's will, if any, subject to subsection (13);
        support            (b) a person's right to a share of the estate under Part II (Intestate Succession) of the
                           Succession Law Reform Act;
                           (c) an order made against the estate under Part V (Support of Dependants) of the Succession
                           Law Reform Act, except an order in favour of a child of the deceased spouse.
6(13)   Exception          (13) The spouse's entitlement under section 5 does not have priority over a gift by will made in
        By contract        accordance with a contract that the deceased spouse entered into in good faith and for valuable
                           consideration, except to the extent that the value of the gift, in the court's opinion, exceeds the
                           consideration.
6(14)   No                 (14) No distribution shall be made in the administration of a deceased spouse's estate within six
        Distribution       months of the spouse's death, unless,
        within six         (a) the surviving spouse gives written consent to the distribution; or
        months of          (b) the court authorizes the distribution.
        death
6(15)   Notice of          (15) No distribution shall be made in the administration of a deceased spouse's death after the
        application        personal representative has received notice of an application under this Part, unless,
                           (a) the applicant gives written consent to the distribution; or
                           (b) the court authorizes the distribution.
                           * Unlike dependants - Need notice of actual application (Paola v. Paola)
6(16)   Extension of       (16) If the court extends the time for a spouse's application based on subsection 5 (2), any
        limitation         property of the deceased spouse that is distributed before the date of the order and without
        period             notice of the application shall not be brought into the calculation of the deceased spouse's net
                           family property.
6(17)   Exception          (17) Subsections (14) and (15) do not prohibit reasonable advances to dependants of the
        Advances to        deceased spouse for their support.
        Dependants
6(19)   Liability of       (19) If the personal representative makes a distribution that contravenes subsection (14) or
        personal           (15), the court makes an order against the estate under this Part and the undistributed portion of
        representative     the estate is not sufficient to satisfy the order, the personal representative is personally liable to
        If just goes       the applicant for the amount that was distributed or the amount that is required to satisfy the
        ahead and          order, whichever is less.
        distributes

Must be careful when representing couples – for some rights may conflict.
If there is a problem need to determine who you are representing.
Problems: Eg. Wife is executrix and wants to take under s.5 --- does s.6(8) “interpreted as if surviving died before the
other” apply to executrix duties too?

7(1)    Applic. to court    7. (1) The court may, on the application of a spouse, former spouse or deceased spouse's
        – determine         personal representative, determine any matter respecting the spouses' entitlement under
        any matter          section 5.

7(2)    Personal as         * Estate can not try to get equalization after death, but can continue
        b/w the             (2) Entitlement under subsections 5 (1), (2) and (3) is personal as between the spouses but,
        spouses             (a) an application based on subsection 5 (1) or (3) and commenced before a spouse's death
                            may be continued by or against the deceased spouse's estate; and
                            (b) an application based on subsection 5 (2) may be made by or against a deceased
                            spouse's estate (only happen if other spouse dies w/I 6 mths)

Which beneficiaries gifts are subject to Equailization Payments: Like abatement – start with residue.

Mistakes in Election:
Van der Wynguard (not in Book)
Wife made a will in 1985 – Husband substantial beneficiary; 1986 a new will maded, removed husband as beneficiary.
Husband filled notice challenging second will regarding testamentary capacity. He also elected under FLA for
equalizations. Representatives wanted to set aside his objection because he filed for equalization.
Held: Conditional election not allowed but… same result.

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The legislation does not permit a ‘conditional’ election – depending on whether valid or not.
The election applied to second will if it was found valid. If not valid, his election does not prevent the husband from taking
under the first will. So could elect to a particular will.
Case criticized: Should have applied for an extension of time – let will challenge proceed – then subject to what happens
regarding the challenged will make an election.

Re Bolfan
Wife left percentage interest of her estate to her husband, he then filed for an election under FLA and then attacked the
will for testamentary incapacity.
Held: Overturned Van der Wynguard – Since he made election to take under FLA he had no standing to take under the
will, nothing in Act to allow withdrawl of election, and court did not think they could.

Varga Estate
An election is not effective if person electing does not understand the consequences of the election. Not just a mistake but
did not understand, then election could be withdrawn or changed.

Personal Between Spouses (s.7(2))
Pananagaden Case (1991)
Applicant and deceased married in 1977, separated in 1979. Valuation Date – is date of separation. One spouse died in
1980. Spouse left entire estate to child. Surviving name as beneficiary on life insurance and got 100 000.
Wanted to use s.5 instead of s.6
Held: Could not use s.5 – personal b/w spouses (s.7(2))

Rondberg v. Rondberg
Can personal re file within 6 mths for deceased spouse
Held: No personal rep can not file an election, rather reference to the personal nature

* However, while personal rep. can’t, committee of a spouse or attorney acting under a p of a can make election – in both
person still alive.

Maljkovich v. Malijkovich
H and W separated, tried to negotiate. Husband killed wife. Then tried to apply under act.
Held: Could not apply under s.5(1) after death b/c of s.7(2). And could not do so under s.6 – b/c his actions lead to death,
can’t profit from.

Proposed Way around:
- Surviving spouse could sign the election for equalization – deposit that with a lawyer with directions as to when and
under what circumstances that individual should file the election
- Have them do a codicil to the will – in the event that I die w/I 6 mths of my husbands death I request my executors to file
*Argument would be that they had made election, and gave the authority for filing to some one else




                                                              65
                                                   Support Obligations
Definitions:
SLRA – Generally more limited:
“Child” includes conceived before but born alive after parents death
“Spouse” means legally married

But for purposes of Part V (s.57):
“child” includes a grandchild, and person whom has demonstrated a settled intention to treat as child
“spouse”
     - includes same-sex partner (a) continuously for a period of not less than 3 years, (b) or some permanence if they
          are parents of a child)
     - standard common law definitions (b)i) continuously for a period of not less than 3 years, ii) or some permanence if
          they are parents of a child)
     - includes man and woman who were married to each other or nullity (a)
“dependant” – 2 part definition (s.57):
     i.       Stand w/i a certain degree of relationship (pretty wide given these broad definitions)
              Includes: spouse or s-s spouse, a parent, a child, a sibling
     ii.      Some degree of financial connection (more narrow)
              Person to whom person was providing support, or under a legal obligation to be providing support.
              Needs to have been a somewhat regular pattern of support
              eg. Perhaps a birthday present of some significance. (But just b/c come w/I the definition of dependant does
              not mean you will get anything)
* No requirement that dependant under a certain age or in financial need, though it is an important criterion.


Provisions for support in the SLRA are means to mesh with the inter vivos support provisions in the FLA.

Re Cooper
Deceased died March 31, 1978 – survived by R, his former wife (divorced in 1971), four adult children, one mentally
incapacitated and A, with whom deceased had been living common law with for 7 years. Most of estate went to R in
policies of insurance and a pension plan. Thr remainder to the four children. The applicant got nothing.
Held: Was a dependant - $15,000
Trial – not a dependant b/c the deceased not providing for her – they both contributed.
Appeal – In sharing common expenses, a couple, married or not are supporting each other, Deceased and applicant
dependant on each other. R’s contributions allowed deceased to built up his estate. Trial they held this against her –
seems odd.
One need not find “dependency” Rather:
     1. Certain relationship to deceased
     2. The deceased was either providing support or under a legal obligation to provide support to the person claiming to
         be a dependant immediately before death.
Did consider the needs compared to R’s and incapacitated daughter

Time Period:
61(1) Appli. w/I 6     61(1)Application for support must be brought within six months of the grant of letters probate or
& (2) months           letters of administration
                       61(2) Though court has discretion to extend if any portion of assets remain undistributed at time of
                       application.
67      Once           67(1) Once notice has been served on the personal representative, they can not proceed with the
(1) &   notice can     distribution of the estate until the court has disposed with the application, unless all persons entitled
(3)     not            to apply consent.
        distribute     67(3) If they distribute any portion of the estate in violation of (1) and support ordered, if remaining
                       assets left insufficient then the personal representative is personally liable to pay the amount of the
                       distribution to the extent of the estate.
67(2)   Can make       67(2) Nothing prevents personal representatives from making reasonable advances for support to
        advances       dependants who are beneficiaries.

* Limitation Act still applies – such that while 6 mths, it does not start running until the claimant reaches the age of
majority. (Blatchfor v. Blatchford Estate - Authors say wrong)

Re Dentinger (1981)
Applicant the deceased’s second wife. Left her a little, though residue to four kids of first marriage.
                                                               66
Deceased’s executrices were two of his daughters. The obtained probate on Dec. 7 1979 – applicant informed the
executrices’ solicitor in writing that she intended to make an application for support on Jan. 16 1980. Within the next three
weeks most of property was distributed. April 11 Applicant commenced proceedings.
Held: The two executrices personally liable under s.67(3), with costs.
The 6 month period is to inhibit from distributing if there is the possibility of an application under the Act, after 6 mths can
go ahead, unless and until he receives notice.
Note: Also found that advances made are to be against beneficiaries share not whole estate.

Adequacy of Support
Guidance:

58(1)   Appli &          58. (1) Where a deceased, whether testate or intestate, has not made adequate provision for the
& (4)   Date             proper support of his dependants or any of them, the court, on application, may order that such
                         provision as it considers adequate be made out of the estate of the deceased for the proper
                         support of the dependants or any of them.
                         (4) The adequacy of provision for support under subsection (1) shall be determined as of the date
                         of the hearing of the application.
                         * Changed from maintenance to support -
62      Factors to       62. (1) In determining the amount and duration, if any, of support, the court shall consider all the
        Consider in      circumstances of the application, including,
        Determining      (a) the dependant's current assets and means;
        Amount and       (b) the assets and means that the dependant is likely to have in the future;
        Duration of      (c) the dependant's capacity to contribute to his or her own support;
        Support          (d) the dependant's age and physical and mental health;
                         (e) the dependant's needs, in determining which the court shall have regard to the dependant's
                         accustomed standard of living;
                         ECT. To s.)

Moral/Ethical
In Ontario, while paying lip service to the moral duty, the courts have restricted their jurisdiction in the past to whether the
testator made adequate provisions as required by the statute. SLRA – mostly financial inquiry.

Re Davies (1979)
                                 nd
Applicant and deceased – both 2 marriage, she had a son. Deceased left entire estate to her son, sole executor.
Applicant wished to remain in the house for the rest of his life.
Held: Adequate provision for proper support of Mr. Davies not made, adequate provision includes allowing him to live in
home, he is to pay for repairs.
Dependants definition widened and “future maintenance” has been replaced by “proper support”
Support – includes not only food, and necessaries of life, but also the secondary meaning of giving physical and moral
support. Extends to some non-essentials or luxuries.
Considered Davies circumstances - age, living in neighbourhood with support, employability.

Orders:
a.) Interim Orders
59        Suspensory       59. On an application by or on behalf of the dependants or any of them, the court may make an
          order            order suspending in whole or in part the administration of the deceased's estate, for such time
                           and to such extent as the court may decide.

64       Interim order     64. Where an application is made under this Part and the applicant is in need of and entitled to
                           support but any or all of the matters referred to in section 62 or 63 have not been ascertained by
                           the court, the court may make such interim order under section 63 as it considers appropriate.


Re Pulver (1982)
R made application for support out of deceased husband’s estate. Probate of the will contested on grounds of incapacity
and undue influence. So brought application for interm support. Executors wanted to stay until disposition of will. They
dismissed the stay – s.64 claims should get fair and liberal interpretation. – So wide discretion to grant interim.

b.) Content of Orders
63       Content of 63. (1) In any order making provision for support of a dependant, the court may impose such
63 (1- Order          conditions and restrictions as the court considers appropriate.
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4)                      (2) Provision may be made out of income or capital or both and an order may provide for one or
                        more of the following, as the court considers appropriate,
                        (a) an amount payable annually or otherwise whether for an indefinite or limited period or until the
                        happening of a specified event;
                        (b) a lump sum to be paid or held in trust;
                        (c) any specified property to be transferred or assigned to or in trust for the benefit of the
                        dependant, whether absolutely, for life or for a term of years;
                        (d) the possession or use of any specified property by the dependant for life or such period as the
                        court considers appropriate;
                        (e) a lump sum payment to supplement or replace periodic payments;
                        (f) the securing of payment under an order by a charge on property or otherwise;
                        (g) the payment of a lump sum or of increased periodic payments to enable a dependant spouse,
                        same-sex partner or child to meet debts reasonably incurred for his or her own support prior to an
                        application under this Part;
                        (h) that all or any of the money payable under the order be paid to an appropriate person or
                        agency for the benefit of the dependant;
                        (i) the payment to an agency referred to in subsection 58 (3) of any amount in reimbursement for
                        an allowance or benefit granted in respect of the support of the dependant, including an amount in
                        reimbursement for an allowance paid or benefit provided before the date of the order.
                        Agreement or waiver
                        (4) An order under this section may be made despite any agreement or waiver to the
                        contrary.
                        * Court can make an order for support even if D has waived via separation agreement
66       Further        66. The court may at any time,
         powers of      (a) fix a periodic payment or lump sum to be paid by a legatee, devisee or beneficiary under an
         court          intestacy to represent, or in commutation of, such proportion of the sum ordered to be paid as falls
                        upon the portion of the estate in which he or she is interested;
                        (b) relieve such portion of the estate from further liability; and
                        (c) direct,
                        (i) the manner in which such periodic payment is to be secured, or
                        (ii) to whom such lump sum is to be paid and the manner in which it is to be dealt with for the
                        benefit of the person to whom the commuted payment is payable.
SLRA     Incidence      68. (1) Subject to subsection (2), the incidence of any provision for support ordered shall fall
68       of             rateably upon that part of the deceased's estate to which the jurisdiction of the court extends.
         provision      2) The court may order that the provision for support be made out of and charged against the
         ordered        whole or any portion of the estate in such proportion and in such manner as to the court seems
                        proper.

Butts Estate – Ex-Wife had support payment of $500 a month for life, but his estate worth $700 000 and she was in need.
Court found inadequate and entitled to support or lump sum payment.

c.) Variation: Change in Circumstances
65         Inquiries   65. Where an order has been made under this Part, the court at any subsequent date may,
           and         (a) inquire whether the dependant benefitted by the order has become entitled to the benefit of any
           variations other provision for his or her support;
                       (b) inquire into the adequacy of the provision ordered; and
                       (c) discharge, vary or suspend the order, or make such other order as the court considers
                       appropriate in the circumstances.


Maldaver v. Canada Permanent Trust Co.
T’s daughter was left $100 per week from income of father’s estate – had been increased to $170.
Dismissed application – court cannot increase an order for support, since the adequacy of the provisions made by the
testator should be determined on the basis of circumstances existing and reasonably foreseeable at the testator’s death.

d.) Property Subject to Support Order: Priority of Support/Contractual Obligations
SLRA Exclusion if         71. Where a deceased,
71      Good Faith/       (a) has, in his or her lifetime, in good faith and for valuable consideration, entered into a contract
        Consideration to devise or bequeath any property; and
                          (b) has by his or her will devised or bequeathed that property in accordance with the provisions
                          of the contract,
                                                              68
                          the property is not liable to the provisions of an order made under this Part except to the extent
                          that the value of the property in the opinion of the court exceeds the consideration therefor.
                          R.S.O. 1990, c. S.26, s. 71.

72 (1)   Preventing       72. (1) Subject to section 71, for the purpose of this Part, the capital value of the following
– (7)    Evasion          transactions effected by a deceased before his or her death, whether benefitting his or her
         Property         dependant or any other person, shall be included as testamentary dispositions as of the date of
         deemed part      the death of the deceased and shall be deemed to be part of his or her net estate for purposes
         of Estate        of ascertaining the value of his or her estate, and being available to be charged for payment by
                          an order under clause 63 (2) (f),
                          (a) gifts mortis causa;
                          (b) money deposited, together with interest thereon, in an account in the name of the deceased
                          in trust for another or others with any bank, savings office, credit union or trust corporation, and
                          remaining on deposit at the date of the death of the deceased;
                          (c) money deposited, together with interest thereon, in an account in the name of the deceased
                          and another person or persons and payable on death under the terms of the deposit or by
                          operation of law to the survivor or survivors of those persons with any bank, savings office,
                          credit union or trust corporation, and remaining on deposit at the date of the death of the
                          deceased;
                          (d) any disposition of property made by a deceased whereby property is held at the date of his
                          or her death by the deceased and another as joint tenants;
                          (e) any disposition of property made by the deceased in trust or otherwise, to the extent that the
                          deceased at the date of his or her death retained, either alone or in conjunction with another
                          person or persons by the express provisions of the disposing instrument, a power to revoke
                          such disposition, or a power to consume, invoke or dispose of the principal thereof, but the
                          provisions of this clause do not affect the right of any income beneficiary to the income accrued
                          and undistributed at the date of the death of the deceased;
                          (f) any amount payable under a policy of insurance effected on the life of the deceased and
                          owned by him or her;
                          (f.1) any amount payable on the death of the deceased under a policy of group insurance; and
                          (g) any amount payable under a designation of beneficiary under Part III.
                          * s.72 serves to bring claw back the value of property held on JT which vests in survivors, if
                          support application brought within the time period.
Basically:
        a.   gifts mortis causa (death be gift)
        b.   money deposited in an account in trust for somebody else
        c.   money deposited in an account as joint tenants
        d.   any disposition of property in joint tenancy
        e.   policy of insurance
        f.   payable under designation of beneficiary under RSP or pension plan

Moores v. Hughes (1981)
T divorced, had 2 kids. Under separation agreement T paid $800 per month, and allowed to remain in matrimonial home
until 1981, then get $15 000. T married R. T left ½ estate to R and ½ to kids. Included insurance policies, a pension, joint
bank account and house.
Applicant had a mental illness, unemployable. Got interim support.
        st
Held: 1 wife got support payments of $1300 per month
What constitutes the estate – Certain specific transactions effected by a deceased before his death are now to be
included as testamentary dispositions as of the date of death. Here only $40 000 in the estate, though $365 000 outside of
it.
Covered by s.72(1)(f):
     - Insurance policy
     - Group life policy
Covered by s.72(1)(g)
     - Pension plan through work
Covered by s.72(1)(c)
     - Joint Bank account
* No matter if owned through work, b/c deceased designated the beneficiaries, or already distributed
                  st                                                        nd
Considered that 1 wife married to H for 26 years, as opposed to 11/2 of 2 wife --- most of pension plan built up during
this time.

                                                             69
Smallman Estate
Re s.72(1)(g) – if it is a committee who designates then will not be considered part of the estate.




                                                             70
                                                Alternative Dispute Resolution

Negotiation
                      rd
Arbitration       - 3 party gives a decision
Medication        - come to decision together
Med-Arb           - try to mediate, falls through, then arbitrate
Pre-trial Settlement Conference – before judge
Mini-trial – shorter, less witnesses

Mediation
   - not talking about rights but interests

Reality --- untrained lawyers just want to “do a deal” so really just facilitated negotiation
Different styles from Facilitation (sit back, listen) to Evaluative (evaluate legal issues, retire judges)




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