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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
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1. B'NAI BRITH SEMINAR, MAY 23, 2017
Kimberly Whaley moderated a session at the B'Nai Brith Seminar, on May 23, 2017, on Power of Attorney and Accounting with presenters, The Honourable Susan E. Greer, Melanie Yach and Sue Stamm.
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2. 2017 CANADIAN LEGAL LEXPERT DIRECTORY
Kimberly Whaley was Lexpert Directory Ranked in the 2017 Recognizing Excellence in the Legal Community by Canadian Legal Lexpert Directory, ranked as Consistently recommended.
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3. LAW COMMISSION OF ONTARIO, (LCO) MAY 29, 2017
The LCO released a Discussion Paper and launched province-wide consultations for its Improving the Last Stages of Life project on May 29, 2017.
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4. LAW SOCIETY OF PEI & CBA PEI BRANCH & LAW SOCIETY OF PEI PROFESSIONAL DEVELOPMENT DAY, JUNE 23, 2017
Kimberly presented her papers on "
Decisional Capacity & Undue Influence"; "
Solicitor's Negligence: Estates and Trust Context"; and "
Attacking and Defending Gifts"; at the CBA PEI Branch, PEI Branch and Law Society of PEI, Professional Development Day, Stanley Bridge, on June 23, 2017.
Lionel Tupman moderated a discussion with the Honourable Chief Justice Matheson, and Kimberly Whaley on "
Solicitors Negligence".
Thank you PEI, to Robin and Lisa, The Law Society and CBA for the kind invitation.
We spoke with 120 lawyers from PEI - and ate lots of lobsters.
Links to papers:
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(i) LAW COMMISSION OF ONTARIO PROJECT ON IMPROVING THE LAST STAGES OF LIFE, MAY 2017
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by Amanda Bettencourt
The Law Commission of Ontario (LCO) has released its final Discussion Paper on the Improving the Last Stages of Life
project, which considers how the law shapes the rights, choices, and quality of life for persons who are dying and those who support them.
"Last stages of life" is the term used in the project
to capture the experience of dying as a process or a continuity of events, whether as a result of terminal illness, chronic conditions or serious frailties.
The LCO outlines the purpose and goals of the project, namely:
- To address a range of issues, including equitable access to palliative care, caregiver benefits, aspects of medical assistance in dying, decision-making over the withdrawal and withholding of treatment, supports for faith and cultural communities, and dispute resolution.
- To better identify and recommend, based on consultations with these groups, law reforms that are concrete, precise, and responsive to the experience of persons in the last stages of life.
Public consultations are in progress (since June, 2017) and will run through to September, 2017. Following this consultation period,
the LCO will release additional information and report on interim findings and preliminary recommendations in early 2018.
Further information regarding the ongoing public consultations can be found on the LCO website: link
In order to address the theoretical and practical implications raised by this project, the LCO has established an Advisory Group, which brings together a diverse group of professionals with particular expertise in the area.
WEL Partners' Mark Handelman is a member of the Advisory Group and has co-authored a commissioned research paper for the project entitled, "The impact of suffering on decision-making and methods of assessing capacity in the last stages of life." Kimberly Whaley was also involved in the consultations.
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(ii) DAGG V. CAMERON ESTATE, 2017 ONCA 366, 2017 CARSWELLONT 6557
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by Kathryn Morris
What happens when a support payor owns a life insurance policy and has been required by court order to name the recipient of spousal or child support as the irrevocable beneficiary of the policy and upon the payor's death, the policy becomes the subject of a competing claim, pursuant to Part V of the Succession Law Reform Act ("SLRA"),[1] by another dependant of the deceased?[2] Justice Brown of the Ontario Court of Appeal ("ONCA") recently addressed this issue in Dagg v Cameron Estate ("Cameron Estate"), specifically inquiring into how section 72(7)[3] of the SLRA operates in conjunction with section 72(1)(f)[4].
[5]
FACTS
The appellant and the deceased were married in September 2003. They had two children together. In 2010, the deceased took out a $1 million policy of insurance (the "Policy") on his life, in which he named the appellant as the beneficiary. In January 2012, the appellant and the deceased separated and shortly thereafter, the appellant commenced a matrimonial proceeding against the deceased.
[6
]
In February 2013, Justice Rowsell made a consent order requiring the deceased to pay interim child support and spousal support payments.[7] Justice Roswell's order further stated that the deceased would maintain the appellant as the irrevocable beneficiary on any life insurance policy. In July 2013, the Order was varied to adjust the amounts that the deceased was required to pay in terms of child and spousal support, while "All other terms of the order of Justice Rowsell dated February 27, 2013 shall remain in full force and effect."
[8]
Following the separation with his wife, the deceased became involved with the respondent. In July 2013, the respondent told the deceased that she was pregnant with his child. Their son was born in February 2014, three months after the deceased passed away.
[9
]
Shortly after having been diagnosed with cancer in November 2013, the deceased executed his Last Will and Testament and a Canada Life Title form. These documents amended the beneficiary designation on the Policy to include the respondent and his son and daughter from his marriage with the appellant.[10] Upon learning of the deceased's beneficiary changes under the Policy, while the deceased was in the hospital, the appellant brought a motion seeking to restore her designation as the sole beneficiary.[11] Justice Nelson, who heard the motion on November 20, 2013, found that the deceased breached the Rowsell Order, and ordered that the insurance company amend the beneficiary designation such that the appellant be named the sole and irrevocable beneficiary on the Policy.[12] Three days later, the deceased died and left an insolvent estate.
[13]
In March 2014, the respondent applied under Part V of the SLRA for dependant's relief. Incorporated in her application was a request for a determination that section 72 of the SLRA applied to the $1 million in proceeds from the Policy, "the value of which form part of the Estate and is available to satisfy the claim for support."
[14]
ANALYSIS
In reviewing the relevant jurisprudence, the ONCA found that courts have recognized that the obligation to make a support payment under the Divorce Act or the Family Law Act creates a debtor-creditor relationship.[15] Thus, when a support payor dies their estate may be liable for past and future support obligations, depending on the terms and duration of the support order and the act under which the order is made.
[16
]
Justice Brown went on to find that the Divisional Court erred in finding that the appellant did not fall under section 72(7) of the SLRA because she was not a secured creditor with a secured interest in the Policy. He reasoned that a proper interpretation of section 72(7) encompasses any creditor of the deceased so long as the transaction falls under those described in section 72(1),[17] including "a policy of insurance effected on the life of the deceased and owned by him."
[18]
The ONCA concluded that in a situation where the deceased owns a life insurance policy in which he or she was previously ordered by a court to designate a support recipient as the irrevocable beneficiary of the policy, the support recipient's rights to the policy are protected through section 72(7) from being deemed part of the deceased's estate through the operation of section 72(1). In other words, upon the death of the support payor, the support recipient becomes a creditor of the deceased by virtue of the court order which vests a legal right in the recipient to satisfy the deceased's support obligations as calculated at the time of his or her death through the policy's proceeds.
[19
]
CONCLUSION
The judgment of the ONCA in Cameron Estate reverses the lower courts' decisions which held that a court-ordered irrevocable designation on a life insurance policy was subject to section 72 of the SLRA, to the extent that a life insurance policy's proceeds may be used to satisfy an award for support under the SLRA.
This decision arguably affords greater protection for support recipients who previously may not have been aware of the powerful effect that a SLRA claim could have on their incoming support payments. Moreover, this case highlights the need for parties to structure their affairs appropriately in the event of a matrimonial dispute if the parties wish to exclude life insurance policy proceeds from the grasp of the SLRA.[20]
[1]
Succession Law Reform Act, RSO 1990, c S26 [SLRA].
[2]
Dagg v Cameron Estate, 2017 ONCA 366, 2017 CarswellOnt 6557 at para 5 [Cameron Estate].
[3]
SLRA, s 72(7): "This section does not affect the rights of creditors of the deceased in any transaction with respect to which a creditor has rights."
[4]
SLRA, s 72(1)(f): "Subject to section 71, for the purpose of this Part, the capital value of the following transactions effected by a deceased before his or her death, whether benefitting his or her dependant or any other person, shall be included as testamentary dispositions as of the date of the death of the deceased and shall be deemed to be part of his or her net estate for purposes of ascertaining the value of his or her estate, and being available to be charged for payment by an order under clause 63 (2) (f), ...(f) any amount payable under a policy of insurance effected on the life of the deceased and owned by him or her...".
[10]
Ibid at paras 15-16.
[18]
Ibid at para 74; SLRA at s 72(1)(f).
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(iii) SOLICITOR'S NEGLIGENCE CPOAP & TESTAMENTARY CAPACITY INDICATORS - PRINCE EDWARD ISLAND - NOT A NEW CASE BUT A GOOD ONE!
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In the case of Coughlan Re, 2003 PESCTD 64 (CanLII),
a daughter and the Propounder of her father's Will, sufficiently established through expert evidence and the evidence of the drafting solicitor, that her father had testamentary capacity. Her father was 90 years old at the time he executed his Will and there was some question whether he suffered from Alzheimer's disease or not, along with age appropriate memory losses.
Relying on the evidence of the drafting solicitor and two expert witnesses (both psychiatrists) who all opined that the testator had the requisite capacity to execute a Will, Justice Cheverie concluded that the evidence supported the finding that the testator was sufficiently clear in his understanding and memory to know, on his own, and in a general way the nature and extent of his property. He may have had "some details mixed up, but he generally knew the nature and extent of his property. He knew he had some savings; he knew he had a pension; he knew he had an interest in some real estate."
[1]
He also knew he had three children and that he had grandchildren.
Notably, the drafting solicitor "went to great lengths" to determine whether the testator was sufficiently clear in his understanding and memory to make the testamentary provisions provided for in his Will. Two psychiatrists were engaged to offer their professional opinions as to his ability to make testamentary provisions. Justice Cheverie concluded "certainly the weight of expert opinion in this case supports the conclusion that he had the requisite testamentary capacity, and I so find."
[2]
On the role of the drafting solicitor, Justice Cheverie commented:
I wish to comment on the process and actions engaged by Mr. Mitchell [the drafting solicitor] in his dealings with John James Coughlan [the testator]. I was impressed by the steps which he took to satisfy himself as to Coughlan's capacity to make a will and the manner in which he approached the topic from a professional and common sense approach. Some of the inquiries he made of Coughlan appear light and superficial. For example, the baseball references.
[3]
But in the end, the answers to those questions were very telling. Mitchell made sure Mary Coughlan [the daughter] was not present when he took his instructions, and was careful to determine Coughlan's knowledge of the extent of his estate, his potential beneficiaries, and his reasons for his dispositions. Further, Mitchell, from his experience, had a sense this will would be contested. It is for that reason he engaged the psychiatrists to comment on what he felt was the disposing mind of John James Coughlan. Mitchell indeed made detailed notes of his meetings with Coughlan and his observations from those meetings and they are now part of the record at this trial. Suffice it to say that Mitchell was not going to rely on his memory alone if this matter were contested - he had his notes.[emphasis added]
[4]
Upon reviewing the capacity to revoke a CPOAP alongside testamentary capacity, Justice Cheverie, made the following additional observations:
- that the drafting solicitor spent 15-20 minutes questioning the testator and assessing him for capacity to revoke the POA;[5]
- the drafting solicitor concluded he was lucid, focused, and wanted to regain control of his assets. He discussed the existing POA and the fact it was stated to be irrevocable;[6]
- the solicitor also made sure he had knowledge of his assets and that he reviewed and understood the revocation when he signed it;[7]
- the solicitor had also arranged the testator to meet with two psychiatrists who were engaged to assess both the testator's ability to revoke a POA and his testamentary capacity; and
- one of the psychiatrists who assessed Coughlan testified that "her opinion with respect to the ability of Coughlan to revoke a Power of Attorney is that he has to understand what it is in order to revoke it".[8]
Some lawyers, like in Coughlan, recommend their clients who are older adults or who appear to have a mental disability to undergo a capacity assessment for the purposes of planning protection. Ultimately, the final arbiter of capacity will be a judge who will consider any assessments as evidence. Indeed, it is the responsibility of the drafting solicitor to assess the client's capacity to grant or revoke a power of attorney or health care directive appointing a proxy, when asked to prepare such documentation for a client.
[9]
This does not mean to suggest that a solicitor in discharging this duty of care may not recommend, encourage or suggest a formal assessment by an assessor in cases where litigation is likely, or in borderline cases, all in an effort to protect the autonomy of the individual and the decision made.
[1]
Coughlan, Re 2003 PESCTD 64 (CanLII) at para. 129
[2]
Coughlan, Re 2003 PESCTD 64 (CanLII) at para.130.
[3]
The lawyer asked about the testator's interest in baseball and specifically the Mark McGuire home run race. He questioned the testator about how many home runs Mark McGuire had at the time and the testator was correct: 62.
[4]
Coughlan, Re 2003 PESCTD 64 (CanLII) at para. 132.
[5]
Coughlan, Re 2003 PESCTD 64 at para. 88
[6]
Coughlan, Re 2003 PESCTD 64 at para. 88
[7]
Coughlan, Re 2003 PESCT 64 (CanLII) at para. 90.
[8]
Coughlan Re 2003 PESCTD (CanLII) at para. 117.
[9]
Egli v. Egli, 2005 BCCA 627 (CanLII)
In this case, the trial judge placed greater importance on the evidence of the drafting solicitor than that of a physician in finding that Mr. Egli had the requisite capacity to execute the POA in question.
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PART III: UPCOMING EVENTS
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LSUC, Estates Administration
September 29, 2017
Co-Chair: Kimberly Whaley and Tim Grieve
Speaker: professor Albert Oosterhoff
Toronto Police Seminar
Elder Abuse
October 5, 2017
Speaker: Kimberly Whaley, Lionel Tupman
STEP Toronto
Elder Abuse
October 18, 2017
Speaker: Kimberly Whaley and Professor Albert Oosterhoff
Advocis, The Financial Advisors Association of Canada
Dealing with Older Clients
October 20, 2017
Speaker: Kimberly Whaley
Ontario Police Seminar
October 2017 (TBC)
Speaker: Kimberly Whaley
CCEL BC
Independent Legal Advice: The Interplay of where Capacity and Undue Influence
November 2-3, 2017
Speaking: Kimberly Whaley
CBA Nova Scotia
November 30-December 1
Speaker: Kimberly Whaley
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PART IV: RECENT BLOG POSTS
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