WEL Newsletter - Volume 6, Number 1 - April 2016



Whaley Estate Litigation provides litigation, mediation and dispute resolution to clients throughout Ontario:
 

 
* Albert Oosterhoff, Professor Emeritus Western University, Counsel to WEL consults on matters within his areas of expertise, providing opinions concerning Wills, Estates, Trusts and related Property matters. 
 
Please Enjoy,

Kimberly A. Whaley
WEL

PART I: WEL NEWS

1. BARREAU DU QUÉBEC, MONTREAL, LES DÉVELOPPEMENTS RÉCENTS EN SUCCESSIONS ET FIDUCIES (2016), MARCH 18, 2016

 
Kimberly Whaley presented her article on "Predatory Marriages: Legal Capacity to Marry and the Estate Plan", at the Barreau du Québec, on March 18, 2016, with Lionel Tupman in Montreal.   

Link to article on our website 

2. THE ADVOCATES' QUARTERLY

 
Arieh Bloom's and Lionel Tupman's article: "The Honour of the Crown and Indian Succession and Inheritance Law in Canada: Fiduciary Protection or Creeping Re-Appropriation of Aboriginal Property?" was published in the Advocates Quarterly Vol. 45, 2016. 

3. STEP TORONTO CONNECTION, APRIL 2016

 
Kimberly's article: "In Grocery Bags and Under Pads of Paper: The Validity of a Found Holograph Codicil" was published in STEP Toronto Connection, April 2016 - Vol. 3 No. 6.
 

4. STEP TORONTO CONFERENCE, MAY 18, 2016

 
Albert Oosterhoff will present his article: "Competing Fiduciary Obligations" at the STEP Toronto conference on May 18, 2016.

5. ESTATE PLANNING COUNCIL, APRIL 5, 2016

 
Mark Handelman and Laura Cardiff presented at the Estate Planning Council on April 5, 2016, on the topics of "When is it Legal to Die in Canada?: Cuthbertson v. Rasouli and Carter v. Attorney General." Their talk considered the issues of consent, substitute decision making, what constitutes withdrawal from treatment, how one qualifies for a court-sanction, physician-assisted death across the country today, and what could go wrong as the provinces legislate (or fail to legislate) this area in the future. 

PART II: LAW REVIEW
(i) KISH V SOBCHAK, 2016 BCCA 65 (CANLII)
by Kimberly Whaley

    
BC Court of Appeal Examines Standard of Review on Appeal from Dependent Support Summary Trial

In a rare sitting of five appellate judges, the British Columbia Court of Appeal reduced a dependant support award made under the Wills Variation Act[1] (the "WVA") after a summary trial.

Kish v. Sobchak[2] touches on two important topics: the standard of review applicable to findings made on a summary trial under the WVA, and how the "societal norms" of legal and moral obligations discussed in Tataryn v. Tataryn[3] are to be applied to the "modern values and expectations" of the parties.
 
Justice Newbury, on behalf of the panel, introduced the decision with some observations on the realities that affect modern spousal dependant support claims:

The case at bar requires us to deal with some other realties being experienced by many in the postwar generation as it passes its wealth to the next. Those realities include the greater frequency of divorces, re-marriages and 'serial' relationships. . . Another reality that confronts us in Canada as life expectancy increases is the incidence of Alzheimer's Disease and other forms of dementia in seniors.[4]

Facts and Trial Decision

The testator, Mr. Sobchak, and the plaintiff, Ms. Kish, were mature adults when they met. Both had been previously married and had acquired their own property and income. They never married and clearly did not wish to be treated as spouses and both hoped to benefit their adult children (by earlier relationships) on their deaths. They kept their finances separate and kept up separate homes. The trial judge found that while the husband maintained his own home, kept his personal possessions and received his mail there, he was "residing" with Ms. Kish for at least five years before his death. When Ms. Kish began experiencing memory problems he became her full-time caregiver and witnesses observed a loving romantic relationship.

After being diagnosed with pancreatic cancer Mr. Sobchak executed a new Will leaving his entire estate to his daughter. In his Will he stated that Ms. Kish had her own home and her own money and that he felt it was more important to provide for his only daughter who was a single mother to three kids. Ms. Kish also signed a new Will leaving everything to her son and grandson. After Mr. Sobchak's death, as her litigation guardian, Ms. Kish's son commenced a dependant support claim on her behalf, seeking a declaration that the deceased's Will failed to make adequate provision for her maintenance and support and to vary the Will according.

At the time of the trial, Ms. Kish suffered from severe dementia and was living in an institution. The trial judge concluded that Ms. Kish's budget was "absolutely bare bones".[5] The Court also found:

....in all of the circumstances of this case that the deceased did have both a legal and moral obligation to the plaintiff. The parties were a couple for over 20 years, living together for at least five. The plaintiff would have had a claim for support had they separated. The defendant was able to rent out his home while he lived in hers and had clearly some benefit as a result of the parties shared expenses. I read his Memorandum and Codicil as an implicit acknowledgement by him of his duty to her . . .on the other hand, the parties met later in life; each had previous marriages; and each had a child. They did take steps to keep their assets separate. There is a wider range of options available to a testator that will meet his moral and legal obligations in circumstances such as these. Further, as I have indicated, the parties, maintained separate financial lives, which speaks to testamentary autonomy.[6]

Taking into account Ms. Kish's legal and moral claims, her financial need, the moral claims and needs of the testator's daughter and what she had received outside the Will on her father's death ($250,000.00), the judge arrived at the lump sum figure of $100,000.00 to be paid out of the $187,000 estate for a dependant support award for Ms. Kish. The daughter (who was also the executor of his estate) appealed.
 
Standard of Review

A division of five judges was assembled to consider the appropriate standard of review:

It is an unusual feature of appeals under the WVA that this court is said to have "unfettered discretion" to reconsider the "findings" of the trial court - except those based on oral testimony. The case at bar was tried summarily - i.e. on affidavit and discovery evidence. Counsel sought clarification on the standard of review applicable to the summary trial judge's findings.[7]

A line of cases in B.C. dealing with the WVA concluded that the Court of Appeal has the power and the duty to review the circumstances and reach its own conclusions as to the discretion properly exercised on dependant support claims.[8] In Tataryn, Justice McLaughlin commented that "for the purposes of [WVA], an appellate tribunal is in the same position as the trial judge; deference to the findings of the trial judge is not required except on matters based on oral testimony: Swain v. Dennison [1967] SCR 7."[9] In Kish, there was no oral testimony, but only affidavit evidence.

After reviewing the relevant jurisprudence, the Court of Appeal concluded that there were two possible approaches for the standard of review on appeals from summary trial decisions under the WVA:

(a) All "findings" of a trial judge, including those that involve the exercise of judicial discretion, are reviewable by this court without deference, except findings based on oral testimony, which are subject to the Housen v. Nikolaisen standard; or
 
(b) A trial judge's exercise of discretion may be reviewed without deference, but all findings of fact (whether based on oral or affidavit evidence) are subject to the Housen standard.[10]
 
Justice Newbury found that the "the second alternative is the preferable one".[11] While the Court of Appeal must defer (i.e. apply the 'palpable and overriding' or 'no supporting evidence' standard) to findings of fact made by the trial judge, they were not bound to defer to her exercise of discretion.[12]
 
Contemporary Standards

Turning to the dependant support claim, the Court observed that what is "adequate provision" for a spouse is to be viewed in light of "current societal norms", both legal and moral.[13] The Court concluded that the husband would have had some legal obligation of support during his lifetime.

As for the moral obligation, the Court noted that "more factors come into play".[14] One such factor was the competing claim of the deceased's daughter who was a single mother to three children and who believed that she would inherit substantially.

After reviewing the trial judge's findings of fact, the Court came to the following conclusion:

In Tataryn, the Court stated that testator autonomy is one of the two interests "protected" by the WVA. In the circumstances of this case, it seems to me that "contemporary community standards" would be more respectful of that principle than was found to be appropriate in the 'traditional' marriages in Bridger and Picketts. Many today would find it unfair or inappropriate to disregard the wishes of both parties that their modest estates, built up through their own individual efforts, should be their own and that their respective children should benefit exclusively therefrom. And, while it is true that government is presumably supplying Ms. Kish's needs, most would not regard her as living on some type of subsidy or 'handout'. Rather, she is receiving benefits from a medical system to which all Canadians contribute and from which all are entitled to receive medical care.

Like the trial judge, this court can do no better than exercise its discretion based on all of the relevant factors in the particular case before it. In my opinion, the factors that weigh most heavily are the relative sizes of the two estates on the one hand, and on the other, the legal support obligation to which Mr. Sobchak would have been subject if the parties had separated during his lifetime. In all the circumstances, I cannot say the trial judge erred in finding that Mr. Sobchak failed to make "adequate provision" for Ms. Kish, even though she has the equity in her home to meet her basic needs.
 
At the same time, I conclude that through the lens of "modern values and expectations", the parties' wishes remain an important consideration. The parties' particular circumstances and their relationship weigh strongly, in my opinion, in favour of respecting testator autonomy. I would, with respect, give more weight to that principle than did the trial judge and would therefore reduce the award to Ms. Kish to $30,000.[emphasis added][15]

Conclusion

This case highlights the difficult tasks Courts have in balancing testamentary autonomy and a testator's moral and legal obligations. It also provides some guidance on the standard of review in such cases, at least in British Columbia.  In Ontario, the Court of Appeal confirmed in Cummings v. Cummings that on an appeal from a decision under Part V of the Succession Law Reform Act, which governs dependant support claims, the appeal court will not interfere with the trial judge's exercise of discretion unless there was "an error in principle, a failure to consider material evidence, or the giving of too much weight to one relevant consideration over others".[16]

What is more interesting are the court's observations on what is "adequate provision" for a spouse which the court stated was to be viewed in light of "current societal norms", both legal and moral.[17] This lens of current societal norms is important in what is a changing social demographic with later life partnerships often after successive unions resulting in complex family structures.


[1] RSBC 1996, c 490 (the "WVA"). Note: The WVA was repealed and its provisions were rolled into the Part 4 of the Wills, Estates and Succession Act, SBC, 2009 c.13. However, it did not come into force until March 31, 2014 and under s.186 of that Act, the WVA continued to apply to the Kish case, where the testator died prior to March 31, 2014.
[2] 2016 BCCA 65 ("Kish").
[3] [1994] 2 SCR 807 ("Tataryn").
[4] Kish at para. 2.
[5] Kish at para. 16.
[6] Kish at para.21.
[7] Kish at para. 5
[8] Kish at paras. 31-34.
[9] Kish at para. 40 citing Tataryn at para.11.
[10] Kish at para. 43.
[11] Kish at para. 44.
[12] Kish at para. 45.
[13] Kish at para. 47.
[14] Kish at para. 57.
[15] Kish at paras. 61-63.
[16] Cummings v. Cummings (2004), 2004 CanLII 9339 (ON CA), 69 O.R. (3d) 398 (C.A.), at para. 56, per Blair J.A.
[17] Kish at para. 47.
(ii) MUTUAL WILL VS. MIRROR WILL: NOT TO BE CONFUSED
by Kimberly Whaley

When considering the increase in complex blended families in Canada, it is not an uncommon occurrence for children of a previous marriage to contest the Will of a parent that benefits a subsequent spouse or family. Testator autonomy is respected by the Court's in Ontario, and parents are (generally) allowed to leave their estate to whomever they see fit.

Revising the terms of a Will is not permitted when the parent has executed a "mutual Will". In the most basic terms, the doctrine of mutual Wills governs when two parties make reciprocal Wills agreeing to dispose of property in a set way where there is a promise to abide by a contractual agreement and not change the mutual Wills without the consent of the other party.

When one party dies having kept that promise, equity will intervene to make certain that the survivor keeps to the bargain and a trust will be imposed on the survivor's property if he changes his Will and leaves the estate to different beneficiaries. The leading case, Edell v. Spitzer,[1] elicits the theory underlying the doctrine, which is based in fraud: if the survivor does not honour the agreement, he is guilty of fraud on the first testator, and becomes a trustee of the proceeds of the estate.[2]

Mutual Wills are not to be confused with reciprocal or mirror Wills where the terms of the two Wills mirror each other and the testators are free to change or revoke their Wills.[3]

Recently, the Ontario Superior Court of Justice examined the doctrine of mutual Wills in Rammage v. Estate of Roussel.[4] The sole issue on this summary judgement motion before Justice Reid was to determine whether the deceased had made a mutual Will that prevented her from subsequently changing the effect of its terms.

Facts

The deceased began living with her future husband in 1985 after dating him from 1981. Eventually, the two married in 1997. They had both been married before and had two children each from their previous marriages. In 1998 they both executed Wills by which they gave all of their respective estates to each other and provided for an equal division amongst their four children on the death of the survivor. They named one of each of their children from their previous marriages as trustees.

Upon the husband's death in 2009, the wife received his entire estate. Then, in 2010, she executed a new Will leaving her entire estate to her two daughters. The wife died in 2013 and the husband's children received nothing. They brought a summary judgment motion seeking a declaration that the Wills executed by husband and wife in 1998 were mutual Wills and that the wife's estate should be divided equally amongst all four children.

Mutual Wills or Mirror Wills?

Upon reviewing the jurisprudence on mutual Wills, Justice Reid observed that the key issue to be determined was "whether extrinsic evidence supports the presence of a binding legal contract" between the testators that neither party could change the terms of their Will.[5] Proof of a binding contract to establish mutual Wills must be established through "clear and convincing evidence".[6] Also as a matter of public policy special care must be taken in examining evidence concerning the validity of a Will. In particular, section 13 of the Evidence Act must beconsidered. Self-serving evidence of jilted heirs is not enough to prove an agreement, corroborative evidence is required: [7]

Since neither [the husband] nor [the wife] are alive, the parties must turn to extrinsic evidence to support or negate the intention to make mutual Wills, bearing in mind that the onus of proving the mutual Wills is born by the plaintiffs. That evidence must be considered contextually. I accept that a moral obligation is insufficient, to raise the terms contained in reciprocal Wills to the level of a contractual obligation.[8]

The plaintiffs argued that there was a binding contract, relying on evidence provided by affidavit: the husband and wife acted as if they had a family consisting of four children, the husband was close with the wife's children and vice versa, the obituary was indicative of a unified family, the husband and wife told the plaintiffs that the four children would be left everything once they both had passed, etc. Also, the daughter of the wife had made a point of telling the plaintiffs that if the wife was to predecease the father, the father could not change his Will and disinherit her and her sister.[9]

The defendants argued that there was no binding agreement that the 1998 Wills could not be changed after the husband's death. They referred to a cohabitation agreement the parties entered into when they first started living together which purported to keep their property separate. The wife owned a home and told her daughters that they would inherit it. Also, upon the husband's death the wife did not have a close relationship with his children.
[10]

The lawyer who prepared the 1998 Wills recalled no expressed intention or discussion to the effect that the parties could not change the Wills independently of each other. The wife never discussed the terms of the 1998 Wills or the 2010 Will with her children.

Justice Reid noted that:

It is important to consider that the 1998 Wills contained two key components: the provision of financial security for the surviving spouse, and an inheritance for the four children in due course. The first component is consistent with a long-term supportive relationship between spouses, and the second is reflective of the blended family history. It is completely logical that both [the wife] and [the husband] wanted to provide for each other and for their respective children with some certainty. . . There was no behaviour on the part of either [the husband] or [the wife] after 1998 prior to [the husband's] death indicating that either of them wanted to change their estate plan or would allow the other to do so.[11]

Justice Reid concluded that the plaintiffs satisfied their onus of proving the existence of a verbal contract between the wife and husband based on clear and convincing evidence. That contract was made in "the context of the family constellation at the time and is consistent with the evidence that both [the wife] and [the husband] for their separate reasons, wanted to ensure that a benefit was bestowed on their respective children by the survivor of them." [12]

Conclusion

Not only is this case instructive on the doctrine of mutual Wills and estate disputes amongst blended families, it is an example of the appropriateness of the matter being disposed of by way of summary judgment. Both parties submitted all available information through affidavits and transcripts from cross-examinations. Justice Reid noted that as a matter of proportionality, it was practical to conclude the matter without a trial since the value of the estate was only in the range of $250,000.00.


[1] Edell v. Sitzer (2001), 55 OR (3d) 198 (SC) ("Edell").
[2] Edell at paras.61-62
[3] Rammage v. Roussel 2016 ONSC 1857 at para.17-19.
[4] 2016 ONSC 1857 ("Rammage")
[5] Rammage at para. 20.
[6] Rammage at para. 23 referring to Justice Cullity in Edell at paragraph 58.
[7] Trotman v. Thompson, 2006 CanLII 4953 (ONSC) at paras.36 & 46.
[8] Rammage at para. 49.
[9] Rammage at paras. 25-39.
[10] Rammage at paras. 40-46.
[11] Rammage at para. 56.
[12] Rammage at para. 58.

PART III: UPCOMING EVENTS
The Osgoode Certificate in Elder Law
April 19, 2016
Parent/Adult Child and Sibling Struggles
Speaker: Kimberly Whaley
 
Estate Planning and Litigation Forum
Langdon Hall, London, ON
April 24.26, 2016
 
Ontario Police Conference
Elder Abuse Seminar
April 26, 2016
Speakers:  Kimberly Whaley and Lionel Tupman
 
LSUC, The Six-Minute Estates Lawyer 2016
May 3, 2016
Administration of Insolvent Estate
 
Toronto Police College, Elder Abuse Investigators Course
May 12, 2016
Elder Abuse presentation
Speakers: Lionel Tupman and Laura Cardiff
 
STEP Passport Series
May 18, 2016
Planning Using Trusts
Moderator: Brian Cohen
Speakers: Rachel Blumenfeld, Prof. Albert Oosterhoff
 
NICE Annual Knowledge  Exchange
May 26, 2016
Physician Assisted Suicide
Moderator: Kimberly Whaley

Estates and Succession Practice Group, Ottawa
June 1, 2016, Skype Presentation
Serving the executor- the lawyer's dual role
Speaker: Arieh Bloom
 
STEP Canada 18th National Conference
June 9-10, 2016
Capacity and Undue Influence
Speaker: Kimberly Whaley
 
B'Nai Brith Seminar
June 21, 2016
Speakers: Lionel Tupman and Arieh Bloom
 
LSUC, Administration of Estates 2016
September 20, 2016
Chair: Kimberly Whaley and Timothy Grieve
 
STEP Toronto
October 19, 2016
Attacking and Defending Gifts
Speaker: Kimberly Whaley and John Poyser
 
Toronto Police College, Elder Abuse Investigators Course
October 20, 2016
Elder Abuse presentation
Speaker: Kimberly Whaley
 
LSUC Summit
October 24-25, 2016
Solicitor's Negligence
Speakers: Kimberly Whaley and Lionel Tupman
 
2nd Annual WET Fundamentals Course
October 29, 2016
Contested Passing of Accounts
Speaker: Kimberly Whaley 

PART IV: RECENT BLOG POSTS
Elder Caring Inc. and 'The Wellness Binder': Helping Older Adults Plan for the Future

Globe and Mail: Judge grants doctor-assisted death to terminally ill Toronto man

NAELA News: How do we Support 'Orphan' Elders?

Co-Trustees Can't Sit Back and Relax
Tax Court of Canada Considers the term 'Spouse' in Kuchta v. The Queen
 

Does How We Think of Aging Affect How We Age?

PART V: CONNECT WITH WEL
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