2012 Holiday Newsletter Header
 Whaley Estate Litigation Newsletter Vol.2 No. 9 December 2012 

 HOLIDAY EDITION


 

Greetings!   

  

Greetings, welcome to our December Newsletter.

 

From all of us at WEL, we wish you the best of the season and a Happy and Prosperous New Year!

 

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

Kimberly A. Whaley
Whaley Estate Litigation

 

 

WEL NEWS

1. Megan Bradt has joined WEL as a Law Clerk and Legal Assistant

 

Megan Bradt Megan is a licensed paralegal and has been a member of the Law Society of Upper Canada since 2011. Megan is currently working on her Institute of Law Clerk's of Ontario certification, and has background in estate litigation. 

  

Click to visit Megan's profile on our website

 

 

 

 

2. Eden Kaill Fenrick has recently joined WEL as a Legal Assistant  

 

Eden Kaill Fenrick Eden recently graduated with a Master's in Education from the University of Toronto. Her background experience is in research and administration, both in a legal environment and with non-profit organizations

 



 

3. JaŽl Marques de Souza joins WEL on December 20, 2012

 

Ja√ęl Marques de Souza WEL warmly welcomes JaŽl Marques de Souza as an Associate Lawyer. Her practice focuses on the areas of trusts, capacity, fiduciary, and power of attorney litigation. JaŽl obtained her J.D. in law from Queen's University and a B.A. from McGill University.  

4. Kimberly Whaley was inducted as a Distinguished Fellow of the Canadian Centre for Elder Law (CCEL) at the CCEL Conference held in Vancouver, November 15 -17, 2012

 

The CCEL is the National Canadian organization pursuing scholarly legal research, law reform and public legal education on issues of law and aging.  The dedicated national focus which the CCEL brings to this area is unique in Canada and promotes the development of elder law as a coherent academic discipline.  

  

The overarching goals of the CCEL include providing a nexus between older adults and the law, representing Canada on international elder law issues and promoting academic excellence in this field. 

  

The Distinguished Fellows Program at the CCEL was developed in 2004 in order to bring together the highest level of elder law expertise and to support national and international work in this discipline and is given for excellence and expertise in the field of elder law in combination with exemplary and leading research into many important and under-explored topics. 

 

Other inductees include: 

  • The Honourable Madam Justice Marion Allan - BC Supreme Court (ret.)
  • The Honourable Flora McDonald, PC OC - HelpAge International, Former Cabinet Minister
  • Allan Bogutz - NAELA Founder, Past Public Fiduciary Arizona, Leading US Elder Law Lawyer
  • Edwin Boyer, Boyer Jackson, Florida
  • Jay Chalke, QC - Public Guardian and Trustee, BC
  • Saara Chetner - Senior Counsel, Public Guardian and Trustee, Ontario, Canada
  • Prof. Kimberly Dayton - William Mitchell University
  • Dr. Peter Donohue - University of Toronto
  • Dr. Israel Doron - Haifa University
  • Sue Field - Pubic Trustee Fellow NSW Elder Law, University of Western Sydney
  • Dr. Elaine Gallagher - Executive Director, University of Victoria Centre on Aging
  • Jan Goddard -Goddard, Gamage, Stephens, Toronto, Ontario, Canada
  • Dr. Robert Gordon - Director, School of Criminology, Simon Fraser University
  • Dr. Sandi Hirst -President Canadian Association of Gerontology, Professor of Geriatric Nursing
  • Prof. Richard Kaplan - University of Illinois College of Law
  • Prof. Nina Kohn - Syracuse University
  • Dr. Kirsten Kramar - University of Winnipeg, Sociology and Criminology
  • Dr. Lynn McDonald - Scientific Director, National Initiative for Care of the Elderly
  • Jane Meadus - Leading elder law lawyer and author, Advocacy Centre for the Elderly
  • Prof. Rebecca Morgan - Stetson University Elder Law
  • Judith Wahl - Executive Director, Advocacy Centre for the Elderly, Chair, National Elder Bar
  • Graham Webb, Advocacy Centre for the Elderly
For more information click to visit the CCEL website

5. The Raging Grannies

 

At the CCEL gala dinner in Vancouver on November 16, 2012, the Raging Grannies performed some of their songs related to elder law and abuse.  The Raging Grannies are social justice activists who are all women, who are grandmothers, or are old enough to be grandmothers (whatever old enough means!) 

 

Wikipedia link to the Raging Grannies 

 

The Raging Grannies website 

 

They describe themselves as promoting peace, justice, social and economic equality through song and humour.  You may have seen a lively group of the Raging Grannies lunching at our Law Society of Upper Canada.  The lyrics to the songs sung at the CCEL conference as provided to me by one of the Raging Grannies is attached hereto.

 

During this gala dinner where the Raging Grannies performed, Kimberly Whaley was honoured with a button stating "I'm a Raging Granny" under the performance of a solo rendition of Twinkle, Twinkle, Little Star as a pre-condition to becoming an honorary member and the second condition being that Kim agreed to consider becoming a Raging Granny when she becomes a grandmother.  Much fun was had by all including the Raging Grannies and their messages in their songs are important to our society.

  

6. Nora Rock, Corporate Policy Writer from LawPRO

 

Last month we wrote in WEL News, that Nora Rock, Corporate Policy Writer from LawPRO had interviewed Kimberly Whaley on September 24, 2012.

 

Nora Rock's article entitled: "Late-life Marriage and Will Amendments: Lawyers, proceed with caution", can be accessed via this link and the link to the full newsletter, can be accessed by clicking here.


7. Kimberly Whaley and Ameena Sultan attended the Canadian Centre for Elder Law Conference 

  

Held in Vancouver, on November 15th - 16th, 2012, Kim and Ameena presented a paper entitled: "Advocacy and Aging: From Storytelling to Systemic Change, The Untold Story: Telling the Elder Abuse 'Story' in our Courts".

 

Link to the article as posted on the CCEL site

 

Follow this link to our Blog site where you can download the paper

  

8. Kimberly Whaley spoke at the 15th Annual LSUC Estates and Trust Summit 

  

Held on November 15, 2012, Kim presented a paper entitled: "The Fractured Family - Estate Litigation in Complex, Blended and Extended Families in an Era of Social and Demographic Change".

 

Click to download the paper (PDF, 49 pages)

 

9. Kimberly Whaley and Erin Cowling published in JUST Magazine 

  

Kim and Erin wrote an article entitled: "Elder Law:  Planning for the Protection of Older Adults", published in the December 2012 issue of JUST Magazine, pg. 26-27.

 

Click to download a copy of the article

 

(Also available in French via this link)

 

10. Kimberly Whaley and Erin Cowling were published in Lawyers Weekly

 

Kim and Erin wrote an article for the Lawyers Weekly entitled: "Executor Exit: Removing a Trustee"  - November 30, 2012 volume 32, no. 29 Wills Estates Charities and Trusts Focus, page 10.

 

The article can be accessed by following this link to our blog

 

11. Kimberly Whaley and Ameena Sultan were published in The Advocates' Quarterly

 

Kimberly and Ameena 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" - The Advocates' Quarterly, Vol. 40, 2012, p. 408-469.

 

Last month we advised this article was to be published in December, when in fact it appeared in the November issue.

 

12. Kimberly Whaley, Mark Handelman and Erin Cowling contributed a chapter to the newly published resource book "What Next? Navigating Later Life Transitions" 

Kim, Mark and Erin contributed a chapter entitled "Conundrums in Cognition: Planning for the Future".

"What Next? Navigating Later Life Transitions" features six chapters by different authors and is focused on planning for one's elder years:

"We have come together to write this book to offer education on some of the challenges and options one may face in later life. Our hope is that readers will come away feeling more comfortable and confident with the options they have and better prepared for the decisions they may have to make."


Chapters and Authors:
To order a copy of this free book please contact Kimberly directly.


 

LAW REVIEW: CASES AND OTHER LEGAL REVIEWS

 

1. Menecola v. Drzazga [1]

 

Link: 2012 ONSC 6188 (CanLII)

 

This is a case where the applicant, in the capacity as Estate Trustee, brought an application for directions from the court with respect to the interpretation of the deceased's Will. Of particular issue, were the bequests made to each of the deceased's three sons and the distribution of the residue of the estate. The estate was worth just under $700,000.00.

 

Justice Gordon applied legal principles of intention and the plain meaning of the language used in the Will. In His Honour's analysis, the intention of the deceased could not be discerned from a review of the Will alone. Accordingly, the court considered extrinsic evidence of the circumstances surrounding the making of the Will. The court weighed the evidence of the children of the deceased as well as the drafting solicitor who prepared the Will. From this evidence, the court determined that the intention of the deceased was to require his sons to own the real estate in question, for a period of 10 years as a condition of their bequests. There were various other questions asked of the court in the application for directions, including but not limited to, when the gift to each son vested, if any of the gifts failed, and who are the residual beneficiaries.

 

What was most interesting particularly in a modern costs era, is the treatment of the costs, which Justice Gordon found appropriately to be ordered payable from the estate. The costs outline provided by the applicant and the Children's Lawyer, were ordered payable out of the estate, in what appears to be on a full indemnity basis. It is difficult to ascertain on the Reasons given if indeed the costs claimed were full indemnity. However, Justice Gordon commented that the issues confronting the parties were reasonably complex, substantial sums of money were at play, and though the costs may seem high [per Gordon J.], the time and effort involved was considerable.

 

2. Minkofski v. Dost Estate [2]

 

Link: 2012 ONSC 5598 (CanLII)

 

This is yet another summary judgment decision brought under our new rules for summary judgment motions in which the court held that there was no genuine issue requiring a trial, thus entitling the moving parties to judgment. On the evidence presented to the court, the court found that the validity of the Will was established, and there was no merit to the objection raised. 

 

The Will in question was made at a time when the testator was beginning to show signs of cognitive impairment according to the Reasons of Master Macleod.

 

This case is also notable in that it was determined by a Master.  It is unclear from the Court docket reference whether or not the matter was brought on the Estates List.

 

It appears from the Reasons for Judgment that the original application was commenced in the usual manner, an Estate Trustee During Litigation was appointed pursuant to Rule 74.10, and the usual production Orders issued. 

 

At paragraph 12 of the Judgment, comments of the Master are interesting in that it is stated:

 

"Ordinarily there would also have been an order constituting Mr. Minkofski as the plaintiff and the estate as the defendant, and perhaps requiring the plaintiff to deliver a statement of claim. At a hearing for directions there might also be an order for mediation, trial of an issue, exchange of pleadings or other procedural steps. The court did not require these steps at that time because Mr. Moore did not want the assets of the estate to be utilized to fund what might ultimately prove to be unnecessary procedural steps."

 

It was noted that even after the disclosure requested had been received that the objection which included allegations of incapacity of the testator and undue influence were maintained and not withdrawn.  On the evidence of the objector, the Court Reasons included the following notable paragraphs:

 

[28] Unless it can be successfully challenged, the evidence provided on behalf of the estate trustees is sufficient to establish the validity of the will. In responding to it, the objector need not conclusively persuade the court that he will succeed at trial but need only show that there is a genuine question requiring a trial for resolution. Rule 20.02 (2) reads as follows:

 

(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

 

[29] The first thing to observe is the fact that the objector did not comply with the rule. He did not file any affidavit in response to the motion. What he did file was a document entitled "Factum III". He clearly understood the necessity of responding to the arguments advanced by the moving party but he also made certain unwarranted assumptions. For example he assumed that the earlier motion record would automatically be before the court and he assumed that because the medical records had been ordered produced a copy would be available to the court.

 

[30] The court is obliged to make some allowances for parties who for various reasons are not represented by counsel. Specifically the court should not allow minor technical defects to stand in the way of a just result. A self-represented party may have to be specifically directed to applicable rules and may require additional time to correct missteps. On the other hand, the court must still maintain balance and fairness to all parties.[5] Indulgences and allowances for parties without counsel cannot extend to complete disregard of the Rules of Civil Procedure nor of the rules of evidence.

 

In addressing the test for summary judgment, the Court stated clearly in its Reasons that the Court is entitled to consider whether or not the evidence presented in opposition to the motion is sufficient to demonstrate that there is a genuine issue requiring a trial.

 

Moreover, the Court stated that both Masters and judges have jurisdiction to hear a motion under Rule 20, stating however that a Master may not go quite as far as a judge in deciding the ultimate question.  The reason for this, as stated, is because judges have been given enhanced powers by the January 1, 2010 Rule amendments.  It is to these amendments that the decision of the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII), 2011 ONCA 764 (C.A.) is primarily directed.

 

Under the Rule, it was stated that a Master or a judge is entitled to determine that there is no genuine issue of fact or law and therefore that no trial is required because there is no merit to the position of one of the parties.  By contrast it was stated a judge may now determine that notwithstanding there is merit to the position of both parties and therefore a genuine issue of either fact or law, the judge may, in appropriate case, go on to decide the genuine issue if it is reasonable and just to do so without the forensic machinery of a trial.

 

The Court also in its Reasons commented that in estate litigation, the Court must also have regard to Section 13 of the Ontario Evidence Act that requires a party may not obtain a verdict 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 other material evidence.

 

On the law of capacity, the Master opined that occasional confusion and memory lapses do not vitiate testamentary capacity.  Indeed, at paragraph 63, it was stated as follows:

 

"Testators are not required to have either an accountant's knowledge of their estate nor a lawyer's knowledge of the provisions of a will. The question is whether or not the testator had capacity at the time the will was executed. Botnick is also authority that summary judgment is an appropriate tool in estate cases and may be used to dispose of an unsustainable notice of objection."

 

On the issue of capacity therefore the Court found that the objector failed to show that there was sufficient, relevant, admissible and probative evidence such as to have any chance of success at trial on either ground of undue influence or capacity.

 

It is unknown what the treatment of costs will be in this matter as no decision has yet been reported.

 

3. The Fraudulent Conveyances Act, (the "FCA") R.S.O.1990, Chapter F.29

 

Section 2 of the FCA states as follows:

 

Where conveyances void as against creditors

 

2. Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.

 

The FCA often comes into issue after the death of a spouse, on elections made under Section 5 of the Family Law Act, R.S.O.1990, Chapter F.3 (the "FLA"), which permits an election to take a division of net family property as proscribed for under the FLA after the death of a spouse.  The Court of Appeal decision in Stone v. Stone [3] upheld a decision at trial that included within a deceased spouse's net family property, the value of certain inter vivos dispositions made by the deceased in favour of his children prior to the marriage.  In the result, it was found that certain of the dispositions were void pursuant to Section 2 of the FCA such that the subject matter was indeed considered property owned by the deceased on the valuation date for the purposes of calculating the net family property of the deceased on the date before death.  The judge at trial found that the surviving spouse 'was a creditor or otherwise' of the deceased within the meaning of Section 2 of the FCA.

 

One of the effects of Section 5 of the FCA is to provide a remedy to a spouse in circumstances where the deceased's spouse sought to divest him/herself of property in anticipation of death and to defeat the surviving spouse's claim to equalization. 

 

In Stone v. Stone, it was found that Mrs. Stone had the legal status of a "creditor or other" for the purposes of Section 5(2) of the FCA.  It is clear that Section 5(3) of the FCA provides a right to make an application as a remedy. This right would have existed prior to death where there was a serious danger that the spouse would improvidently deplete the net family property within the meaning of the FCA.  Given that Mr. Stone's death was certain because of his illness, and Mrs. Stone's knowledge of it, even if there were no knowledge of the transfers during the deceased's lifetime arguably Mr. Stone's transfers were being conducted within weeks of the ultimate death, therefore, arguably Mrs. Stone would have been in a position to advance her status as a "creditor or other".

 

In Riseman v. Riseman (2012) ONSC 3148 (CanLII), similarly a spouse moved to set aside an estate freeze of her husband's property for the purposes of a net family property equalization as at the date of separation. This claim was dismissed on grounds which included inter alia, a finding that she was not a "creditor or other" as she had no existing claim against her husband at the time of the estate freeze.

 

The Court in Riseman referenced Stone v. Stone, relying on the passage which solidified the requirement that a claim had to exist at the time of the transfers. 

 

Often we come across situations in estates where the deceased spouse, prior to death, in an attempt to deplete the assets of the estate for the purposes of defeating the claims of creditors or ensuring that monies are not available to charge against where a Family Law Act election is available or otherwise, a dependent's support or other equitable claims may exist. 

 

In this regard, Stone v. Stone is instructive on the circumstances where a surviving spouse would be entitled to set aside such transfers pursuant to Section 2 of the FCAStone v. Stone arguably leaves open the scope of the concept of "creditor or other" in the family law context where there is a death of a spouse.



[1] Menecola v. Drzazga, 2012 ONSC 6188 (CanLII)

[2] Minkofski v. Dost Estate, 2012 ONSC 5598 (CanLII)

[3] Stone v Stone, 2001 CanLII 24110 (ON CA), aff'g 1999 CanLII 15094 (ON SC).

 

 

UPCOMING PROGRAMS


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 Pursuant to Powers of Attorney; and Predatory Marriages

Info:  http://www.nb-cba.org/Events.aspx


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
Info: http://www.osgoodepd.ca/cle/2012-2013Fiscal/2012_elder_law/index.html


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
Info: http://www.cba.org/CBA/sections_elder/main/

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 
 
CCLA Solicitors Conference Montebello
May 3-4, 2013
Speaker: Kimberly Whaley

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
Speaker: Mark Handelman
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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Contact Info

10 Alcorn Avenue, 

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

Kimberly A. Whaley
C.S., TEP.
(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 
 
JaŽl Marques de Souza

(416) 355-3266

 
Deborah Stade
(416) 355-3252
 
Bibi Minoo
(416) 355-3251
 
Eden Kaill Fenrick   
(416) 355-3255

 

Megan Bradt   

(416) 355-3253

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