WEL Newsletter, Vol.7 No.7, October 2017

HAPPY HALLOWEEN!

WEL Partners 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 & Lionel J. Tupman

WEL Partners

CLICK HERE TO VIEW WEL FIRM DIRECTORY

PART I: WEL NEWS

1. THE ADVOCATES SOCIETY, WILL CHALLENGE ADVOCACY FOR ESTATE LITIGATIONS, SEPTEMBER 28, 2017

Debra Stephens presented her article: "Discovery or Surgical Strike: Effective Preparations for Non-Party Examinations", at the Advocates Society on September 29, 2017.

Link to paper

2. LSUC, PRACTICE GEMS: THE ADMINISTRATION OF ESTATES 2017, SEPTEMBER 29, 2017

Kimberly co-chaired the LSUC Practice Gems program, with Timothy Grieve: "The Administration of Estates", held on September 29, 2017 with speakers, Jag Gandhi, Nicole Woodward, Albert Oosterhoff, Debra Stephens, Rick Bickram and Jandy John.

(i) Link to Deb Stephens paper

(ii) Link to Albert Oosterhoff's paper

3. OBA TRUSTS and ESTATES LAW

Amanda Bettencourt's article, "Love and Marriage? More Like Greed and Marriage" was published in the OBA Trusts and Estates Law Section on October 2, 2017.

Link to copy of the paper

4. TORONTO PUBLIC LIBRARY PRESENTATIONS

Kim and WEL Partners have been asked by the Toronto Public Library to present a series of talks at the Toronto Public Library branches on various aspects of elder abuse and predatory marriages that are particularly germane to Toronto's seniors, based on city demographics. These seminars are booked for the following days:

Runnymede Branch, 2178 Bloor St. W., Toronto, ON

Date: Oct. 23, 2017 @ 6:30 pm

Beaches Branch , 2161 Queen St. E., Toronto, ON

Date: Oct. 25, 2017 @ 6:30 pm

Main Street Branch, 137 Main St., Toronto, ON

Date: Nov. 21, 2017 @ 6:30 pm

Leaside Branch , 165 McRae Dr., Toronto, ON

Date: Dec. 6, 2017 @ 6:30 pm

Kim, Amanda Bettencourt and Alex Swabuk will be presenting.

5. TORONTO POLICE SENIORS PRESENTATION, SENIOR AWARENESS PLANNING FOR INCAPACITY AND POWERS OF ATTORNEY, OCTOBER 3, 2017

Kimberly Whaley and Amanda Bettencourt were invited by PC Feizal Rawji, Community Relations Officer, to present on "Senior Awareness" at the McGregor Park Community Centre, organized by the Toronto Police 41 Division Community Relations/Crime Prevention Office. Kim and Amanda focused their presentation on the importance of elder abuse awareness, tips on planning for incapacity, as well as how to prevent future litigation and associated costs through the use of power of attorney documents and proper Will planning.

6. EASTER SEALS DROP ZONE-RAPPELLING FOR CHARITY, SCOTIA-WEL WALL CRAWLERS, OCTOBER 5, 2017

WEL PARTNERS has once again teamed up with Scotia Wealth Management to become superheroes for a day, for a worthy cause. Kim, Lionel, Celine, Amanda, Kate and Shannon rappelled down approximately 16 stories in support of Easter Seals Kids at the CREIT building at 175 Bloor St. East on October 5, 2017. A huge thank you to all of our sponsors who helped our team raise $9,589.00. Without you our journey would not have been such a success.

7. TORONTO POLICE SEMINAR, ELDER ABUSE INVESTIGATIONS, OCTOBER 6, 2017

Lionel Tupman presented at the Toronto Police Seminar on October 6, 2017, on "Civil, Criminal and Equitable Remedies".

Link to paper

WEL Checklist: Civil & Criminal Remedies Elder Abuse

8. STEP CONNECTION TORONTO, OCTOBER 2017

Kimberly's article "The B.C. Court of Appeal reviews the "curative powers" of the Court under section 58 of Wills, Estates and Succession Act" was published in STEP Connection Toronto Branch Newsletter, October 2017, Vol. 5 No. 2.

Link to article

9. CHAMBERS HNW 2017

Kimberly has been ranked in Chambers HNW 2017, Private Wealth Disputes, as a talented and effective litigator.

10. WHALEY ESTATE LITIGATION BLOG

Whaley Estate Litigation Blog has been nominated for participation in the Expert Institute's 2017 Best Legal Blog Contest. The voting has already begun, but there's still plenty of time if you would like to add your vote before the end of the contest on November 4th.

Here is the blog's voting page for the contest:

https://www.theexpertinstitute.com/legal-blog/whaley-estate-litigation-blog/

PART II: LAW REVIEW

(i) SON ORDERED TO VACATE DECEASED MOTHER'S HOUSE: OCCUPATION RENT ORDERED: FILIPPELI ESTATE

2017 ONSC 4923 (CanLII), http://canlii.ca/t/h5j17

By Kimberly Whaley

Several difficult issues can arise when an adult child returns home to live with an older adult parent. One common dispute that can arise after the death of that parent is when the adult child refuses to leave the parent's house. Recently, the Ontario Superior Court of Justice looked at this issue when estate trustees sought an order for vacant possession in Filipelli Estate 2017 ONSC 4923.

The Occupying Son

An adult son was living with his elderly mother when she passed away. She had two other children who were her estate trustees. The home was the main asset of the mother's estate and her Will provided that upon her death the home be transferred into equal shares to the estate trustees; not to the occupying son. Further, her Will provided that 90% of the residue of her estate be transferred to the estate trustees in equal shares, with the occupying son being entitled to the remaining 10% residue. The estate trustees explained that the mother's decision regarding the disposition of her assets was based on the fact that the occupying son had already received the proceeds of the sale of another property the mother owned while she was alive. At the time of the hearing the son had no money left and there was virtually no cash left in the estate.

Despite the provisions of the Will and requests by the estate trustees to vacate, the son remained in possession of the property. He paid no rent, nor conducted any other upkeep or maintenance on the house. It was falling into disrepair.

Tenant under the Residential Tenancies Act?

The estate trustees sought an order requiring the son to vacate the property. The son argued he was a tenant and that the estate trustees could not evict him without complying with the Residential Tenancies Act, 2006, SO 2006 c 17 ("RTA"). However, the only evidence that he was a tenant was his own uncorroborated evidence that he was a tenant and his mother was his landlord. There was no evidence of an oral or written tenancy agreement.

Justice Spies did not agree with the son's argument and found that it would be a "dangerous precedent" if a son or daughter could simply assert that they were a tenant and that their deceased parent was the landlord and thereby thwart a testator's intentions in a case like this, and require the Estate Trustee to take proceedings under the RTA.

Justice Spies found that the estate trustees were entitled to an order that the son provide vacant possession of the property and that if he does not vacate voluntarily that the Toronto Police Service be authorized to forcibly remove him from the property. As he already had ten months to find a new home, Justice Spies gave him 30 days to vacate the property:

Although I appreciate that [the son] alleges he will suffer a hardship as a result of this order, the provisions of his mother's Will are clear and binding. He has had ten months of possession of the property beyond her date of death. In that time, as [the estate trustee's counsel] submitted, there have been record home sales and record high prices and the market appears to now have softened. The [estate trustees] did not provide evidence of this point but this general information is not considered controversial and is well known in the public domain. This means that the delay in obtaining vacant possession to [the property] may mean that the [estate trustees] will not be able to sell the property for as much as they could have this past spring. In any event they have been forced to pay ongoing expenses such as property taxes and insurance to maintain the property.

Not a Tenant but Occupation Rent Owing

Although the son was not a tenant pursuant to the RTA, the estate trustees sought occupation rent for the 10 months that their brother occupied their mother's house, as well as the cost of pest control services, reimbursement of property taxes and insurance paid by the estate trustees.

Justice Spies held that occupation rent is "akin to a claim in unjust enrichment". The brother was clearly enriched by being able to occupy the house and the estate trustees were deprived of both occupancy and the use of the property as well as rental income that could have been generated from it. There was no juristic reason for the enrichment.

The Court ordered $20,000.00 in occupation rent but denied the property taxes and insurance as that would "normally be payable by the landlord if rent were being paid".

Takeaway

Unfortunately a lot of money and time was probably spent by the estate and estate trustees before this dispute was resolved by the Court. Perhaps some pre-emptive planning before the mother's death may have helped to deal with when and how the adult son would vacate the property. On the other hand, sometimes parties to these types of disputes will refuse to leave no matter what and obtaining a potentially expensive court order is an estate trustee's only option.

PART III: UPCOMING EVENTS

STEP Toronto

Elder Abuse

October 18, 2017

Speaker: Kimberly Whaley and Professor Albert Oosterhoff

Program info

Cambridge Brain Sciences:
Legal Capacity Assessment Panel Discussion and Technology Demonstration

October 18, 2017

Speakers: Kimberly Whaley, Ian Hull, Dr. Ken Schulman & Dr. Adrian Owen

Advocis, The Financial Advisors Association of Canada

Dealing with Older Clients

October 19, 2017