WEL Newsletter - Volume 6, Number 2 - May 2016

Happy Victoria Day!

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 is pleased to welcome Andrea Buncic who has joined as an associate lawyer.

Link to profile on our website 

WEL is pleased to welcome Krystyne Rusek who has joined as an associate lawyer.

Link to profile on our website 

Katherine Stephens, in her 3rd year of law school,  has joined WEL for the summer as an articling student.

Kimberly Whaley participated in a group panel discussion on the topic of: Parent/Adult Child and Sibling Struggles.

Kimberly Whaley and Lionel Tupman presented at the Ontario Police College Conference on April 26, in Aylmer, Ontario on the subject of Elder Abuse.


Lionel Tupman and Laura Cardiff presented at the Toronto Police College Conference on May 12, 2016, on the subject of Elder Abuse.  
Link to presentation

Albert Oosterhoff will be presenting his paper: "Competing Fiduciary Obligations", at the STEP Toronto Continuing Education Session on May 18, 2016. 

Kimberly Whaley will be presenting her paper on Capacity and Undue Influence, with Dr. Ken Shulman, Chief of the Brain Sciences Program at Sunnybrook, and Leanne Kaufman or RBC Wealth management, Estate and Trust Services,  at the STEP Canada 18th National Conference on June 9, 2016.
Albert Oosterhoff will be presenting his paper: "The Discrete Functions of Courts of Probate and Construction", with Archie Rabinowitz and John Poyser, a panel moderated by Kim, at the STEP Canada 18th National Conference, June 10,  2016.

by Kimberly Whaley

Solicitor's Evidence Key in Defending Challenge to 
Inter Vivos Transfer

The Ontario Court of Appeal recently upheld[1] a trial judge's finding that the transfer of an elderly mother's home to her adult daughter was a valid inter vivos transfer. This case touched on common issues that can arise in inter vivos transfers or gift challenges: non est factum and undue influence. It also shows the importance of the role of the drafting or advising solicitor's evidence in these situations.


An elderly mother executed a memorandum of agreement (the "MOA") that transferred the ownership of her house to one of her three children for $100,000 and a promise that the mother could live in the house for the remainder of her life. Unfortunately, the mother died shortly after the MOA was executed and the transfer of the house substantially reduced the inheritance to her other children, one of whom (the son), challenged the validity of the transfer. The son argued that as the mother mainly spoke Greek and Macedonian, and could not read the MOA which was in English, the document she signed was of a different nature than what she thought she was signing. Therefore the transfer was invalid under the doctrine of non est factum.  He also argued the daughter unduly influenced the mother.

Solicitor's Role

The MOA was drafted by the mother's own lawyer. The lawyer did not speak Greek or Macedonian but the trial judge found that the lawyer was able to communicate with the mother in English. Over the course of several meetings, while the daughter brought the mother to the meetings, the lawyer always met with the mother alone. He also took an additional step of having the mother see a Macedonian-speaking lawyer to confirm that she intended to transfer her house to her daughter. However, the Macedonian-speaking lawyer did not review the MOA document with the mother as it had not been drafted at that time. 
Non Est Factum

The son argued that trial judge erred in finding that the MOA was not invalidated by non est factum. The Court of Appeal concluded however that the trial judge's findings of fact were an "unsurmountable hurdle" to the claim of non est factum.[2] The trial judge found that: the mother had sufficient English ability to read and understand the MOA; the mother understood her lawyer's explanation of the MOA; and the daughter explained the terms of the MOA in Macedonian. These findings were entitled to deference.

The Court of Appeal also stated:

It should be noted that the appellant is seeking to invalidate a contract signed by a third party. The appellant did not direct us to any authority for the proposition that a third party can move to invalidate a contract on the basis of non est factum. However, given my conclusion on this issue, it is not necessary to decide that matter.[3]

Undue Influence

In the alternative, the son argued that his sister unduly influenced the mother to sign the MOA. The trial judge found that while there was no actual undue influence, there was sufficient evidence to raise the presumption of undue influence as the mother was dependent upon the daughter for her basic needs and she was in a relationship of trust and confidence. The trial judge went on to find however that the daughter was able to rebut this presumption of undue influence. The trial judge placed great emphasis on the solicitor's evidence and that the mother received independent legal advice ("ILA") from the Macedonian-speaking lawyer. On appeal the son argued that the solicitor was in a conflict of interest and that the Macedonian speaking lawyer was not really providing ILA, as he did not go over the terms of the MOA with the mother as it had not been drafted yet.[4]

The Court of Appeal dismissed both of these arguments. There was no conflict of interest as the solicitor was the mother's solicitor and was acting for her alone. He met with her on several occasion and the MOA was the product of her instructions.

However, Miller J.A. of the Court of Appeal, had a slightly different characterization of the consultation with the Macedonian-speaking lawyer than the trial judge. Miller J.A. found that the solicitor was the mother's lawyer and was responsible for providing her with ILA. He engaged the Macedonian speaking lawyer to assist him in carrying out his duties to his client. He referred the mother to the second lawyer "out of an abundance of caution to ensure that it was her intention to transfer her house."[5] The second lawyer did not need to provide ILA to rebut the presumption of undue influence as the mother's solicitor was already providing ILA. [6]


The Court relied heavily on the lawyer's evidence in this case. He took appropriately cautious steps given the circumstances and potential red flags that would arise when dealing with an elderly and ill woman who wished to transfer her largest asset to a daughter who was also her main caregiver. He interviewed the mother alone, ensured she understood the document she was signing, and engaged the services of a lawyer to assist with the language barrier. 

[1] Donis v. Georgopoulos 2016 ONCA 194 ("Donis").
[2] Donis at para.22.
[3] Donis at para. 25.
[4] Donis at para. 35.
[5] Donis at para. 43.
[6] Donis at para. 44.
by Kimberly Whaley
Developing a plan for your digital assets or digital property has garnered more attention in the estate planning world in the last few years. Estate lawyers and their clients now understand the value of digital assets and the importance of dealing with them in estate plans. Digital assets or property include anything that you own in a digital format including emails, photos, e-books, music etc. Digital accounts are the accounts through which you manage those assets, such as Facebook, Twitter, LinkedIn, Google, etc. Some digital assets can be quite valuable, such as a popular and income generating blog or loyalty reward program points. Others are valuable for their sentimentality (such as photos).

While neither Canada nor any of the provinces have enacted legislation dealing with access to digital assets by estate trustees or other fiduciaries, such as attorneys under a power of attorney or guardians, several states south of the border have; most recently Michigan.

New Michigan Law

Michigan's "Fiduciary Access to Digital Assets Act"[7] was approved on March 29, 2016 and will become effective on June 27, 2016. This Act is based on the Uniform Law Commission's revised draft act, the "Revised Uniform Fiduciary Access to Digital Assets Act (2015)" which has been approved and recommended for enactment in all states. The purpose of the Uniform Act is to allow executors, trustees or other persons appointed by a court complete access to a deceased's digital assets.[8]

The new Michigan Act defines "digital asset" as an electronic record in which a user has a right or interest.[9] It also defines a "digital custodian" as someone who carries, maintains, processes, receives, or stores a digital asset of a user (i.e. Google, Facebook, Twitter, PayPal etc.).[10] The Act provides that a person who has an account with a digital custodian may allow or prohibit in a will, trust, power of attorney document or other record, disclosure to a fiduciary of some or all of the person's digital assets, including the contents of electronic communications sent or received. The Act does not give an estate trustee or fiduciary any new or expanded rights other than those held by the user.[11]

Also the digital custodian has discretion to either allow the fiduciary full access to the user's account, partial access sufficient to perform the tasks with which the fiduciary is charged, or a copy in a record of any digital asset.[12]

A digital custodian must make disclosure if the estate trustee or other fiduciary provides a written request, a copy of the death certificate, and certified copy of the letters of authority of the personal representative or a court order. The digital custodian also has discretion to ask for a username or account number, evidence linking the account to the deceased or an affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate, among other documents.

Other Current State Laws in Effect

Thirteen (13) states[13] currently have legislation in place dealing with fiduciary access to digital assets. Bills in three states have been sent to the governor.[14] Some have adopted the Uniform Act or a variation of it. While the scope of some of the laws varies, they all try to address fiduciary access to digital assets.

Other states[15] have put together proposed legislation that is either still being considered or unfortunately has been tabled or abandoned altogether.


The Uniform Law Conference of Canada has put together a working committee to draft a "Uniform Access to Digital Assets by Fiduciaries Act" and commentaries for presentation to the 2016 Annual Meeting.[16] However, as legislation is usually enacted at a much slower pace than technological advancements, it may be some time before we see digital asset legislation here in Canada. We have also not had any significant or reported cases before the courts dealing with the digital assets of a deceased or incapacitated person that could provide lawyers with some guidance. Until either of these events happen, every estate planning lawyer should keep in mind their clients' digital assets when planning. The saying: "A failure to plan is a plan to fail" applies just as much to digital assets as it does to the tangible assets of your clients.

[7] Fiduciary Access to Digital Assets Act, HB 5034, Public Act No. 59 (the "Act").
[9] s.2 of the Act, supra note 1.
[10] Ibid.
[11] s.5(2) of the Act, supra note 1.
[12] s.6(1) of the Act, supra note 1.
[13] Connecticut, Delaware, Florida,  Indiana, Louisiana, Michigan, Nevada, Oklahoma, Oregon, Rhode Island, Tennessee, Wisconsin, & Wyoming, see National Conference of State Legislatures, Access to Digital Assets of Decedents, March 31, 2016, link
[14] Idaho, Oregon and Washington, see National Conference of State Legislatures, March 31, 2016, http://www.ncsl.org/research/telecommunications-and-information-technology/access-to-digital-assets-of-decedents-legislation.aspx
[15] Maine introduced a proposal "To Study the Issue of Inheritance of Digital Assets" on May 21, 2013 link , Maryland introduced proposed legislation on September 14, 2012 but it received an unfavourable report by judicial proceedings on February 18, 2013 link;  Nebraska introduced a proposed law on January 5 2012 but the law was indefinitely postponed as of April 18, 2012 link; New Hampshire introduced a proposed law on January 3, 2013 which was tabled as of January 30, 2013 link; North Dakota introduced a bill on January 21, 0213 which failed on April 9, 2013 link; Pennsylvania introduced legislation which was referred to committee on judiciary on August 23, 2012 link; and Virginia introduced legislation on January 7, 2013 which was stricken at the request of Patron in Courts of Justice link
[16] Uniform Law Conference of Canada, "Uniform Access to Digital Assets by Fiduciaries Act, Progress Report", August 2015 p. 2 link

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
Estate Workshop for Millennials
How to avoid litigation with your siblings/family members
Speaker: Kimberly Whaley/Andrea Buncic
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
Osgoode Professional Development
September 28-29, 2016
Speaker: Kimberly Whaley
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
CBA Wills Estate and Trust PEI
June 23, 2017
Speaker: Kimberly Whaley 

"Make a Will Week" in British Columbia

Advice for Aging Successfully from My Healthcare Concierge

Toronto Star: How Ontario's laws make seniors an easy target for 'predatory marriages'

Accounting Caution: When Looking Back on the Attorneyship

Commentary Regarding Federal Government's Announced Assisted Dying Legislation

CBC.ca: Doctor-assisted dying bill tabled in Parliament

January 1, 2016 Rules changes and the current Form 74.44

The Troubling Link Between Poor Sleep and Dementia

Irrevocable beneficiary designation is not a trust

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