Whaley Estate Litigation

Whaley Litigation Newsletter Vol. 2 No. 8 November 2012




Thank you for your continued feedback, comments, enquiries and contributions that you wish to share: 


Whaley Estate Litigation provides litigation, mediation and dispute resolution services to you or your clients in the following practice areas:

  • Will, Estate, Trust Challenges/Interpretations
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Hearings
  • End of Life Decision Making
  • Treatment Decision Disputes
  • Elder Law
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Counsel to Estate Trustee(s) and Estate Trustee(s) During Litigation and other Fiduciaries
  • Section 3 Counsel under the Substitute Decisions Act
Please enjoy,


Kimberly A. Whaley
Whaley Estate Litigation



1. Erin Cowling was mentioned in the LAWTIMES, Vol. 23. No. 33, October 22, 2012, Page 14, in an article by Michael McKiernan entitled, "Lawyers Advised to Brush up on Digital Assets." 


Link to article


2. Erin Cowling spoke at a recent STEP, Toronto seminar on Digital Assets and Estates.  The link to her article entitled "Digital Assets and Death...More Stuff for the Kids to Fight About" can be found on our Whaley Blog.


Link to blog posting


3. Kimberly Whaley was mentioned in the LAWTIMES, Vol. 23, No. 33, October 22, 2012, Page 9 in an article found in the Focus on Trusts and Estates Law: ADR in Estate Matters, by Michael McKiernan, entitled "Lawyers Pushing for Mandatory Mediation".


Link to PDF scan of the article


4. Nora Rock, Corporate/Policy Writer, from LawPRO, our professional indemnity insurer interviewed Kimberly Whaley on September 24, 2012 and wrote an article in  LawPRO Webscene; Wills Estates and Trusts, entitled " 'Late Life' Marriage and Will amendments: Lawyers, Proceed with Caution". The link to this article will appear in our blog site shortly. 


5. Kimberly Whaley and Ameena Sultan wrote an article entitled "Between a Rock and a Hard Place: The Complex Role and Duties of Counsel Appointed under Section 3 of the Substitute Decisions Act, 1992".  This article will be published in the ADVOCATES QUARTERLY in the December 2012 issue, cited as: (2012), 40 Adv.Q., page 408 


6. We updated two of our Whaley Estate Litigation Checklists (click to link):


i. Capacity Checklist: The Estate Planning Context                    


ii. Summary of Capacity Criteria 


7. WEL would like to warmly welcome and introduce to you, JaŽl Marques de Souza, who has recently joined us. JaŽl's details will follow on our website shortly.


8. Kimberly Whaley will be speaking on Wednesday, November 14th at the LSUC Estates and Trusts Summit 2012 on: The Fractured Family, Estate Litigation in Complex, Blended and Extended Families in an Era of Social and Demographic Change.


9. Kimberly Whaley and Ameena Sultan will be attending the Vancouver CCEL Conference on November 15-17, 2012, and will be speaking on: "The Untold Story: Telling the Elder Abuse "Story" in our Courts".


Link to Conference Info


10. Kimberly Whaley, Mark Handelman and Erin Cowling were published in a new book which was released this week. The book called "WHAT NEXT?" Navigating Later Life Transitions" features authors, Bev Evans, Greg Bechard, Elaine Frost, Deidre Slowey, and colleague and friend, Jasmine Sweatman. Dr. Bill Webster, Editor, orchestrated this project. The book is a practical tool to educate the public and captures planning resources for the older adult.

More information on this publication will follow.



1. England and Wales High Court (Court of Protection) Decisions[1] - SMBC and WMP and RG and GG (by their litigation friend, the Official Solicitor) and HSG and SK SKG [2]


This case is interesting in that it involved the adjudication of matters concerning forced marriage and the police seeking forced marriage protection orders. The proceedings were commenced before the Court of Protection in the UK. Like Ontario, the presumption is that a person is presumed to have capacity unless and until the contrary is shown.


The statutory definition for incapacity, under section 2 of the Mental Capacity Act, (the "MCA") is as follows:


(1)  "For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.


(2)  It does not matter whether the impairment or disturbance is permanent or temporary.


(3)  A lack of capacity cannot be established merely by reference to -


(a)  A person's age or appearance, or


(b)  A condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.


(4)  In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act, must be decided on the balance of probabilities.


(5)  No power which a person ("D") may exercise under this Act -


(a)  In relation to a person who lacks capacity, or


(b)  Where D reasonably thinks that a person lacks capacity,

Is exercisable in relation to a person under 16.


(6)  Subsection (5) is subject to section 18(3)."


This case describes section 2 as the so-called, 'diagnostic test' and references section 3 of the MCA as the functional test. Section 3 reads as follows:


1. "(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable-


(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means).


(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).


(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.


(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of-


(a) deciding one way or another, or

(b) failing to make the decision."


The legislation in the U.K. is similar, yet, not the same as in Ontario. Too, the jurisdiction the court is afforded is similar, yet not the same as is highlighted throughout the judgment which analysis is not the primary purpose of noting this case. Indeed, the primary purpose is twofold:


(1) To review the analysis on the capacity to marry; and


(2) To note with emphasis the court's jurisdiction and conclusions with respect to whether or not  there should be an interim order for capacity assessment.


With respect to the former - capacity to marry, the court refers to Sheffield CC v E & S [2004] EWHC 2808 (Fam) wherein Justice Munby summarized the issues and criteria to apply in considering the capacity to marry as follows:


[1]  "Does P understand the nature of the marriage contract?


ii. Does P understand the duties and responsibilities that normally attach to marriage?


iii. Does P understand that marriage is a contract, formally entered into, which confers on the parties the status of Husband and Wife, having agreed to live together, to love one another as Husband and Wife, creating a relationship of mutual and reciprocal obligations, typically conferring the sharing of a common home and a common domestic life and the right to enjoy each other's society, comfort and assistance?"


Part 3 of the court's considerations are interesting to me, given that they seem to encompass as a factor to consider, a relationship of mutual and reciprocal obligations which could largely include financial obligations.


At paragraph 45 of the judgment, it is argued that marriage is a simple relationship to comprehend. Again, the reference to the Sheffield case where Munby J., states:


"Marriage ... is not something on which the average person needs to obtain either expert advice or expert assistance. That is if I may say so palpably the case. I entirely accept as did the learned Judge that the contract of marriage is a very simple one which a normal person can easily comprehend. I accept too that there are many of borderline capacity whose lives are enriched by marriage. The bar must indeed as Munby J. said not be set too high so as to "operate ...an unfair, unnecessary and indeed discriminatory bar against the mentally disabled." The problem with her reasoning however is that I have before me a doctor's report which is based on instructions to deal with the marriage and financial issues which is incomplete as to its inquiries; though there is plainly some evidence as to an incomplete and somewhat irresponsible approach to the married state. The psychiatrist says he wants more information. Ms Davidson criticised that- to determine the cause of a difficulty does not go to its nature and extent, she argued. It is not I think as simple as that. He is not ruling out incapacity either to marry or understand financial affairs. But he is saying that given the cognitive deficits he observed, more information will clarify the extent and depth of the problem".


Again, the court seems to take into consideration, financial issues, and moreover at paragraph 6, further establishes the understanding of the obligations in marriage to encompass.


[41] She argued that the Local Authority has failed to surmount the lower threshold test set out in s 48 MCA and as described by HHJ Hazel Marshall. She set the matter in the context of the Sheffield decision to which I have referred - arguing that HSG does understand the simple obligations of marriage and that it is in the light of Dr X's opinion premature to proceed any further. There was she said simply no evidence justifying the application continuing in the Court of Protection. Judge Marshall had put it this way:


"The proper test for the engagement of s48 in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his capacity can be made...Thus there capacity is in itself is in issue [pausing there as in HSG's case] it may well be the case that the only proper direction in the first place should be as to obtaining appropriate specialist evidence to enable that issue to be reliably determined."


In both the question of whether or not there was capacity to marry, and whether or not an interim order for an assessment be made, the court concluded as follows:


[55] I conclude that the information available as yet to the court establishes the Court's jurisdiction; for there is a substantial body of evidence which gives good cause to believe that HSG may lack capacity- the test for interim orders is accordingly made out. Moreover it would in my judgement be irresponsible and premature for the court to discharge HSG when the inquiries of Dr X are not complete in circumstances where at least some of his inquiries can be completed without forcing HSG to undergo tests he is declining to undertake. I bear in mind his vulnerability [for example his apparent assertion at one point that his marriage was forced and his alleged bizarre bus stop marriage proposal] which indicates someone on that difficult borderline between capacity and incapacity in important decisions in his life. I take the view as suggested by Ms Pratley that the present application before me poses the same questions as did the Re F case and the tests enumerated by HH Judge Marshall for the court to make an interim order are met.


[57] ... vi. I do not accept that psychometric testing is so intrusive as to be an improper test to apply to someone on the borderline of capacity even where he is reluctant to undertake them.


The conclusions in this case seem to suggest that, where best evidence is available and capacity is in issue, the proper direction would be to obtain the appropriate specialist evidence so that the capacity issue may be reliably determined.


So often in these cases, where capacity is in issue, best evidence is available, but is not disclosed or court ordered, and this case stands for the proposition that where appropriate, best evidence should be available.


2. Hill v. Hill, 2012 CarswellOnt 12933,2012 ONSC 5855


Hill and Hill serves as a reminder of the law as it relates to corroborative evidence and standard of proof in estates matters. 


In this case, the applicant sought enforcement of an agreement between he and the deceased as it now relates to the deceased's estate.  The agreement purported to be a written partnership agreement to carry on a farm business as a partnership.  The facts of the case are not particularly noteworthy.  What is noteworthy is a reminder of the law as it relates to evidence in estates matters.  Section 13 of the Ontario Evidence Act states:


Actions by or against heirs, etc.


13. In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. R.S.O. 1990, c. E.23, s. 13.


The Standard of proof in such matters is the "balance of probabilities" within which the degree of proof may vary, depending on what is at stake[3].


The existence of the agreement itself was not at issue, and the receipts issued and produced by the applicant proved to be satisfactory proof of the agreement.  What was also notable were the respondent's allegations that the receipts produced were fraudulent.  Justice Wilcox reminds us at paragraph 38 of the judgment that the onus is on the person alleging fraud to prove it clearly and distinctly.[4]  The court reminds us that in civil cases where there is an allegation of conduct that is morally blameworthy, or that could have a criminal or penal aspect, the court will require a high degree of probability.  In this case, the court found that the respondent failed to meet this test or standard[5].


3. Clement v. A.G. of Canada and Mark Gallant, 2012 ONSC 5823 (CanLII)


This case involves an estates matter, however is primarily a consideration of bankruptcy and insolvency issues.  What is interesting is the paragraphs of the decision that address "what vested in the Trustee?"


In that regard, paragraphs 39 of the judgment through 42, as well as paragraph 58 are interesting, and reproduced as follows:


Per MacKinnon J.


[39] I accept as accurate the statement of law provided in Stoneman v. Gladman 2005 CanLII 63796 (ON SC), (2005), 45 C.C.E.L. (3d) 309, at para. 27:


27 Property includes causes of action, and thus where a person has been adjudged bankrupt it is necessary to consider whether the person has lost the capacity to prosecute the cause of action. This matter is discussed in Williston and Rolls, The Law of Civil Procedure, (Toronto: Butterworths, 1970) at pp. 173-174, where the authors state [citations omitted]:


Where a person or corporation has been adjudged a bankrupt, it is necessary to consider if a cause of action can be asserted by his trustee in bankruptcy and whether an action may be brought against the trustee in bankruptcy with leave.


Not all causes of action vest in the trustee, but only those which belong to the bankrupt's estate and which may be applied for the purpose of distribution amongst his creditors. Consequently, the right of action does not vest in the trustee where the damages claimed are to be "estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind or character, and without immediate reference to his rights or property. The following rules may be stated:


1. A right of action in respect of a tort or a breach of contract resulting in injuries wholly to the person or feeling of the bankrupt does not pass to the trustee.


2. A right of action in respect of a tort or of a breach of contract resulting in injuries wholly to the estate of the bankrupt passes to the trustee.


3. A right of action, whether in respect of a tort or of a breach of contract, resulting in injuries both to the estate and also to the person or feelings of a bankrupt, will be split and will pass so far as relates to the estate, to the trustee and will remain so far as relates to the person or feelings of the bankrupt, in him.


Applying these rules, it has been hold that an undischarged bankrupt cannot himself sue a defendant for damages for having fraudulently and without reasonable cause procured his bankruptcy, or for damages for wrongful and illegal conspiracy to put the bankrupt into bankruptcy. Such causes of action, if they exist, pass to and are vested in the trustee


[40] The court may dismiss the claim for injuries to the estate of the bankrupt and allow the claim personal to Clement to proceed. Stoneman is authority for the proposition that where the claim is clearly a personal one but a head of damage might turn out to be property vested in the trustee in bankruptcy, then this should be left to be determined after a trial. The defendants here admit that there is a personal claim for damage to reputation in the claim that ought to proceed to trial. In my view, that distinguishes this case from the actual scenario in Stoneman where the court found that the claim advanced was not clearly personal but rather that "they have threaded a personal claim into the fabric of a cloth a claim that belongs to the estate in bankruptcy": see para. 29.


[41] Deschambault v. Abraham, 2011 ONSC 5366 (CanLII), 2011 ONSC 5366, 207 A.C.W.S. (3d) 419 (Sup.Ct.)is also authority for the proposition that a bankrupt who possesses a cause of action either before his assignment into bankruptcy or his discharge from bankruptcy cannot himself pursue the claim and that such a claim may be struck as an abuse of process of the court. In Watt v. Beallor Beallor Burns Inc. 2004 CanLII 18877 (ON SC), (2004), 1 C.B.R. (5th) 141 (On. Sup.Ct.), Farley J. also said at para 3: "If a bankrupt brings an action relating to 'property'which vests in the Trustee, the action should be struck as an abuse of process of the Court." The Court of Appeal did not interfere with that conclusion in Watt v. Beallor Beallor Burns Inc. 2004 CanLII 19821 (ON CA), (2004), 1 C.B.R. (5th) 149 (On. C.A).


[42] Accordingly, the claim that the actions of the defendant have caused lasting damage to Clement's reputation is a personal claim which did not vest in the Trustee and is not barred. The plaintiff is entitled to have this claim proceed to trial. At the same time, it is incumbent on the plaintiff to draft the personal cause of action clearly so that the alleged injury is to Clement's person, reputation or integrity, and not to his property.


... [58] In my view, these pleadings are contrary to the decision of the Court of Appeal in Giacomelli v. Canada (Attorney General)2008 ONCA 346 (CanLII), 2008 ONCA 346, 90 O.R. (3d) 669. There, the court stated that an estate cannot continue a claim based on s. 15(1) or 7 of the Charter because those rights are personal and therefore end with the death of the affected individual. The exceptions to this principle are not applicable here. This is not an appeal from a judgment in relation to an alleged Charter breach nor was the case argued with the claimant's death intervening before judgment was entered.


[1] England and Wales High Court (Court of Protection) Decisions

[2] SMBC and WMP and RG and GG (by their litigation friend, the Official Solicitor) and HSG and SK SKG, [2011] EWHC B13 (COP)

[3] Burns Estate v. Mellon, 48 OR (3d) 641 (Ontario Court of Appeal) paragraph 36

[4] Wilson v. Suburban Estates Co., 1913 CarswellOnt 400, 24 O.W.R. 825, 40 W.N. at 1488, para 38

[5] Continental Insurance Co. v. Dalton Cartage Co., [1982] 1 S.C.R. 164



STEP (Society of Trust and Estate Practitioners) Program

November 13, 2012

Estate Planning Issues Related to Divorce and Blended Families 

Osgoode Hall Law School, The Donald Lamont Centre

Info: http://www.step.ca/programs.asp?b=Toronto


LUSC Estates & Trusts Summit

November 14-15, 2012

Estate Claims Arising out of Remarriages

Speaker: Kimberly Whaley  


Canadian Centre for Elder Law (CCEL) 2012 World Elder Law Study Group
Advocacy and Aging: From Storytelling to Systematic Change

November 16-17, 2012
Vancouver, B.C.  

"Telling the Story of Elder Abuse in the Courts"

Speakers: Kimberly Whaley and Ameena Sultan

Info: http://www.bcli.org/news/events/conferences


STEP (Society of Trust and Estate Practitioners) Program

January 9, 2013

Estate Trustee Liability
Osgoode Hall Law School, The Donald Lamont Centre 

Chair: Kimberly Whaley

Info: http://www.step.ca/programs.asp?b=Toronto 


CBA New Brunswick Conference

February 8-9, 2013

Powers of Attorney; and Predatory Marriage

Speaker: Kimberly Whaley, Financial Abuse and Misuse of Authority

OSGOODE Professional Development - Advising the Elderly Program

February 12, 2013

Remarriages and Common Law Arrangements: Estate Claims by Spouses

Osgoode Professional Development Centre

Speaker: Kimberly Whaley


STEP (Society of Trust and Estate Practitioners) Program

February 13, 2013

US Tax Issues with Life Insurance Policies 

Osgoode Hall Law School, The Donald Lamont Centre 

Info: http://www.step.ca/programs.asp?b=Toronto


CBA Elder Law Section Program, Toronto

Substitute Decision-Making and Elder Law (National Elder Law Section)

April 15-16, 2013

Chair: Kimberly Whaley


STEP (Society of Trust and Estate Practitioners) Program

April 16, 2013

RCA's, IPP's and Health and Wealth Trusts

Osgoode Hall Law School, The Donald Lamont Centre Info: http://www.step.ca/programs.asp?b=Toronto


LSUC Six-Minute Lawyer

April 24, 2013

Passing of Accounts: The recommended Best Practices for Passing of Accounts

Speaker: Kimberly Whaley

Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE13-0041101 


LSUC Six-Minute Lawyer 

April 24, 2013

Emerging Elder Law Issues

Speaker: Kimberly Whaley

Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE13-0041101 


LSUC Six-Minute Lawyer 

April 24, 2013

Digital Assets

Speaker: Erin Cowling

Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE13-0041101 

STEP (Society of Trust and Estate Practitioners) Program

May 8, 2013

Make Your Golden Years Golden...Planning For and Advising on Personal Care Powers of Attorney and Advance Directives

Osgoode Hall Law School, The Donald Lamont Centre 

Chair: Kimberly Whaley

Info: http://www.step.ca/programs.asp?b=Toronto 


CBA, National Conference, Saskatoon, Saskatchewan

August 2012

Speaker: Kimberly Whaley, Roundtable discussion


LSCU, The Administration of Estates 2013

September 19, 2013

Chair, Kimberly Whaley 

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10 Alcorn Avenue, 

Suite 301
Toronto, ON, M4V 3A9
Tel: (416) 925-7400 
Fax: (416) 925-7464


Kimberly A. Whaley
C.S., TEP, LL.M.
(416) 355-3250

Mark Handelman
(416) 355-3254

Ameena Sultan
(416) 355-3258


Erin C. Cowling
(416) 355-3262

Benjamin D. Arkin
(416) 355-3264


Deborah Stade
(416) 355-3252


Bibi Minoo
(416) 355-3251

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Whaley Estate Litigation