CONSIDERATIONS IN MOVING FORWARD WITH A WILL CHALLENGE

In my experience, it’s quite common to have a call with a potential client that involves the following situation:

  • The potential client has concerns about their relative’s last will and testament. The relative’s Will was changed shortly before the relative’s death, reducing the potential client’s share of the estate, or removing the potential client from the Will entirely.
  • The relative exhibited memory issues and confusion in the years leading up to their death. The relative may have also shown signs of paranoia or behaved in previously uncharacteristic ways.

In some cases, the facts provided by the client strongly suggest that the relative was unlikely to have had the capacity to make the disputed Will. However, most situations do not fit into this category and there are often many gaps in the potential client’s knowledge.  This is often because some key information and documentation is not available to review.  For instance, documents such as medical records and the file of the lawyer who prepared the Will are not normally going to be available until a court Order is obtained for their release. But one cannot obtain such an Order without first starting a court application to challenge the Will.

Once the Order for production of documents is obtained and the medical, legal, financial, and other documents are reviewed, the case may look quite different than it initially appeared.  It may be a better or worse case than the lawyer initially might have thought given the very limited information that was first available. For this reason, it is very important to re-assess the strength of a Will challenge case at each step of the litigation process.

On a related point, a client should not wait too long to challenge the validity of a Will. The estate trustee named will be busy administering the Estate and will eventually distribute the assets if they aren’t prevented from doing so through a court Order which ties up the administration. This type of Order is typically granted when a Will is challenged. As well, it is extremely important that a limitation period not be missed, as a limitation period could have the effect of blocking a Will challenge from proceeding. (Legal advice will be required to determine when the limitation period begins to run as the particulars of each situation must be considered.) But, generally speaking, while some things may age well, a Will challenge case is not one of them and it’s generally best to commence a claim as soon as possible.

 

Angelique Moss

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.

END OF LIFE CARE: DID YOU KNOW?

Dying with Dignity Canada is a charitable organization that is 100% funded by private donations. The work of their national chapter is probably best known. It engages in advocacy, in particular to expand access to Medical Assistance in Dying (MAID). However, Dying with Dignity’s local chapters are committed to community education on a variety of topics related to end of life, including how to access care, what the available options are, what questions to ask and what information to consider in decision making. This is practical, accessible information that can be of real use to families faced with tough decisions. As a starting place, their website has a variety of information and educational resources.

Local chapters run lunch and learn sessions and other educational seminars, and will respond to enquiries for private sessions geared towards a specific audience. Their sessions can educate attendees on palliative care and practical tips for individuals and their families trying to get the best care that will meet their goals, whatever those may be and in their individual circumstances.

 

Laura Cardiff 

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.

TO BE OR NOT TO BE (A WILL). THAT IS THE QUESTION.

Before January 1, 2022, Ontario courts would only consider a Will valid if the Will complied with the strict, technical formalities set out in the Succession Law Reform Act. For example, under the SLRA, a Will was only considered valid if the Will was in writing, if it was signed by the testator at the end of the document, and if it was witnessed by two or more people.

However, with the recent addition of section 21.1(1) to the SLRA, even Wills that don’t meet those formal requirements may be considered valid, as long as the court is satisfied that the document “sets out the testamentary intentions of a deceased”. This means the court now has the power to order that a document is as valid and as effective as a Will, even if it does not meet the requirements of a Will. This new section of the SLRA applies to Wills of people who died after January 1, 2022.

For a while, we didn’t have many examples of people relying on section 21.1(1). Now, however, we are starting to see the court interpreting section 21.1(1) in some recent decisions.

As expected, the court has relied on cases from other provinces that already introduced provisions similar to section 21.1(1) of the SRLA. In a series of recent decisions from the Ontario Superior Court from June 2023, the court found that even when a Will wasn’t witnessed at all or signed by the testator, the Will was valid because it recorded a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.” If it is clear from the facts and evidence that the deceased intended the document to be a proper Will, it seems like the Ontario court will have little difficulty finding the document to be a valid Will.

In these first few cases interpreting section 21.1(1) of the SLRA, all the documents validated as Wills looked very much like a proper Will, but for a few key issues, like missing signatures. Only time will tell how far the court will go to validate documents that may set out someone’s testamentary intentions, but that stray even farther from the technical requirements of a Will.

 

Cara Zacks

 

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer. 

COUNTING ON YOU: TIPS FOR KEEPING ACCOUNTS AS AN ATTORNEY OR GUARDIAN OF PROPERTY

Choosing to act as an incapable person’s attorney or guardian of property is a considerable and important responsibility. Part of that responsibility is keeping a clear record of all money coming into and leaving the incapable person’s hands. Pursuant to section 32(6) of the Substitute Decisions Act, attorneys and guardians of property are required to keep accounts of all transactions involving the property of the incapable person.

It is important for guardians to maintain accurate, thorough accounts for several important reasons. First and foremost, keeping proper accounts is a part of a guardian’s fiduciary duty to the incapable person and the legislation requires that you do so. Second, keeping thorough accounts can protect you from personal liability if you are required to pass your accounts. Third, the guardian’s compensation is tied directly to the incapable person’s receipts and disbursements.

Below are some helpful tips for guardians and attorneys keeping accounts:

1.     If possible, speak with the grantor of the Power of Attorney prior to that person becoming incapable. Discuss their wishes, assets, and where they are keeping their will. Continue these conversations after you begin acting as an attorney or guardian and encourage your loved one to participate, to the best of his or her abilities, in your decisions about their property.

2.     Review the Power of Attorney document. Often the Power of Attorney will stipulate whether there are any limitations on how you can manage the incapable person’s property.

3.     If you are a guardian for property, you must follow the court-approved Management and Guardianship Plans. If any material change is required to your Management Plan, you should prepare an amended Management Plan and submit it to the Public Guardian and Trustee for approval.

4.     Locate and review the incapable person’s Will. If property is specifically gifted in a will, it cannot be sold unless it is necessary to care for the incapable person.

5.     When you are named guardian or begin acting as an attorney, make a list of all the incapable person’s assets (whether solely or jointly owned). Assets include real estate, money, securities, investments, motor vehicles, other personal property, etc.

6.     Keep a record of all transactions you make on the incapable person’s behalf. It is important that you keep a copy of all receipts and bank statements. These can be maintained in a binder, or scanned into an electronic folder regularly. If maintaining these digitally, ensure that your files are backed up.

7.     Keep the incapable person’s financial accounts and transactions completely separate from your own.

8.     Consult regularly with the incapable person’s supportive family members and friends about decisions that you make with respect to the incapable person’s property.

9.     Most importantly, the incapable person’s comfort and well-being should guide each decision that you make with respect to their property. You are required to exercise your fiduciary duties diligently, with honesty and integrity, and in good faith for the incapable person’s benefit.

10.     You have a right to seek advice and direction from the court to deal with questions about your obligations, and the incapable person’s legal rights. This is not meant to displace your duty to make tough decisions as a substitute decision maker, but to provide you with judicial guidance in complex situations.

 

Rebecca Suggitt

 

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer. 

CASEY & MOSS RECOGNIZED AS TOP 10 WILLS, TRUSTS, AND ESTATES LAW BOUTIQUE

All of us at Casey & Moss are thrilled that our firm was voted as one of the Top 10 Wills, Trusts, and Estates Law Boutiques in Canada for 2023-2024. It is an honour to be recognized for a second time by our esteemed peers and colleagues in the Estates Bar.

Comments from referring lawyers and clients who participated in Canadian Lawyer’s survey spotlighted Casey & Moss’s strengths:

  • “Each partner is a strategic, intelligent and fantastic lawyer.”
  • “As a former client, I can attest to their quality of work and attention to their clients; they always strive for the best outcomes and are a head above the rest.”
  • “Superb client service, reasonable bills, zealous but settlement-oriented advocacy.”
  • “I was opposing counsel, and we efficiently resolved the issues for our clients. It was a pleasure to work with counsel, and what a rarity that is when you’re at opposite ends of the table.”

The firm distinguishes itself from others with its low staff turnover and a clear and concise purpose.

Click here to read the full article on Canadian Lawyer.