Hello,
It is difficult to believe we are already at the end of 2021. These past 2 years seem to have passed at lightning speed in some respects and, yet, in other, namely the pandemic-it has dragged on and on. Two years later we have new variants, and economic turmoil, uncertainty and it is not yet over.
Hitting us while already under strain, have been a number of world-wide environmental disasters including the largest in Canadian history with the recent flooding in B.C., Nova Scotia and Newfoundland.
I for one, am hoping that 2022 will bring us all some calm to balance all of these issues and that it will be a year of recovery and good fortune. I hope that we will have an opportunity to catch our breath and address systemically these old and new issues we are confronted with.
Hanukkah came early this year - and Christmas and all of the other celebrations and holidays are upon us in these next months. My hope and wish is that you have the opportunity to spend time with your family and your friends who may also be your family and share some time, fun and laughs together and appreciate each other and share in the challenges you have been through.
Thank you for your continued support of our team. I am grateful for the growth of our team in our recent additions including Cassan, Claire, and Rachel. We are proud to have such excellent new talent. We have other new team members that we will welcome in the New Year!
Happy Seasonal Celebrations & Happy 2022,
Enjoy the Read,
Kim
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1. ELDER ABUSE PREVENTION ONTARIO WEBINAR, DECEMBER 2, 2021
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Kimberly Whaley presented on “Powers of Attorney for Property and Personal Care in Ontario” at the Elder Abuse Prevention Ontario webinar on December 2, 2021. This program was designed to inform the Ontario Personal Support Workers Association on Power of Attorney documents.
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2. TORONTO POLICE COURSE, DECEMBER 3, 2021 |
On December 3, Daniel Paperny and Natalie Kodsi presented to the Toronto Police Service on the state of elder abuse in Ontario, and the civil and criminal remedies that are available at law to address financial elder abuse. The presentation was part of the Toronto Police Service's week-long course on elder abuse, which course WEL Partners is proud to be a long-time and regular contributor to. |
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3. FEDERATED PRESS, PERSONAL TAX AND ESTATE PLANNING JOURNAL |
“Gratuitous transfers and presumptions: The Journey from Pecore to Mak (Estate) and Beyond”, written by Matthew Rendely and Blair Botsford was published in the Federated Press, Personal Tax and Estate Planning Journal, Volume X, No. 3, 2021
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4. PRECEDENT MAGAZINE, WINTER ISSUE |
See Kimberly’s recommendation in “Pop Culture Recommendations” Winter issue of Precedent Magazine.
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5. CANADIAN LAWYER WEBINAR, NOVEMBER 24, 2021
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Kimberly Whaley and Ian Hull's Canadian Lawyers Webinar “Keeping Pace with Digital Assets - Preparing for the Future” is now archived.
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6. OOSTERHOFF BLOGS ON ESTATES & TRUSTS - VOLUME 1 |
Oosterhoff Blogs on Estates & Trusts – Volume 1 is a compilation of 62 blogs on a wide range of estate, trust and related subjects written by Albert H. Oosterhoff between 2016 and 2021.
The blogs do not simply review new cases and statutes, but usually provide extensive historical background. Case and statute critiques are provided when they run counter to established principles, or do not go far enough in reforming the law. The blogs are often of considerable length and often deal with topics that are somewhat obscure and are not otherwise easily accessible.
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PROFESSOR LIONEL SMITH AWARDED HIGHER DOCTORATE FROM UNIVERSITY OF OXFORD |
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WEL congratulates our friend Lionel on being awarded the Doctor of Civil Law (DCL).
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LEXPERT RISING STARS, 2021 |
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WEL congratulates Ewa Krajewska, Karine Chênevert, Ravi Latour and Tamara Wong, some of the winners of the 2021 Lexpert Rising Stars. This award recognizes leading lawyers under 40 who are up-and-coming in Canada’s legal community.
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(i) DERIVATIVE ACTIONS IN ESTATE LITIGATION |
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By Albert H. Oosterhoff
I began this blog as a comment on Mischke v Mischke Estate.[1] However, I soon realized that the case has broader implications, so I shall explore those first and then review the case.
Derivative actions are common enough in corporate law, but I believe that they are not that common in estate litigation. However, they are a convenient way for a beneficiary to bring an action on behalf of an estate that the executor does not wish to take on. They are sometimes referred to as representative actions.
There are various situations in which a beneficiary might wish to bring such an action. The executor may have concluded that the action is not cost-effective and thus not worth pursuing. Or she may be in a conflict of interest or be at fault herself, and therefore does not wish to initiate proceedings.
In a derivative action the beneficiary brings an action not in her own name, but in the name of the executor and so the executor must be named as a defendant. In other words, the action is brought by and on behalf of the estate. It can be brought only with leave of the court.
Although derivative actions are not common in estate litigation, they do happen and have long been recognized in the common law for both estates and trusts. As Lord Nichols of Birkenhead noted in Royal Brunei Airlines Sdn Bhd v Tan,[2] in the context of obligations professional advisors owe to trustees:
… for the most part [professionals] owe the trustees a duty to exercise reasonable skill and care. When that is so, the rights flowing from that duty form part of the trust property. As such, they can be enforced by the beneficiaries if the trustees are unable or unwilling to do so’.
Roberts v Gill & Co[3] is instructive in this regard. In it, Lord Collins reviewed a number of cases that recognized the principle and that dated back to the eighteenth century. Lord Collins discussed the early cases and referred with approval to the comments by Lord Templeman in Hayim v City Bank NA,[4] in which the Privy Council had engaged in a similar review, and which affirmed the principle laid down in the early cases that a beneficiary can bring a derivative action. Lord Templeman said:[5]
… when a trustee commits a breach of trust or is involved in a conflict of interest and duty or in other exceptional circumstances a beneficiary may be allowed to sue a third party in the place of the trustee. But a beneficiary allowed to take proceedings cannot be in a better position than a trustee carrying out his duties in a proper manner.
Further, after reviewing other cases, he said:[6]
These authorities demonstrate that a beneficiary has no cause of action against a third party save in special circumstances which embrace a failure, excusable or inexcusable, by the trustees in the performance of the duty owed by the trustees to the beneficiary to protect the trust estate or to protect the interests of the beneficiary in the trust estate.
Lord Collins also reproduced the following quotation from American sources to indicate that the same principle prevails there:[7]
It is the trustee rather than the beneficiary who is entitled to maintain actions against third parties who commit torts with respect to the trust property or fail to pay debts held in trust. If the trustee improperly fails to bring such an action, the beneficiaries can compel the trustee by a suit in equity to do so, and in order to settle the whole matter in a single suit, they can join the third party as a co-defendant.
Clearly, to bring a derivative action the beneficiary under the will (or under a trust, or an intestate heir) must satisfy the court that there are special (or exceptional circumstances that justify the derivative action.
In the Roberts case the courts held that the beneficiary failed to establish special circumstances. Two brothers, John and Mark, were beneficiaries under their grandmother’s will. The will provided that if John paid the inheritance tax on the estate, he would inherit one farm and Mark would inherit another. If John failed to satisfy the condition, both properties would fall into residue, and it would be split three ways among them and their aunt. John was named administrator. He paid only part of the tax but transferred the farm to himself and sold the property. John has used two firms of solicitors to advise him. Mark then sued both firms for negligence, that caused a loss to him. However, it became clear that the solicitors owed a duty of care only to the estate and not to Mark. Hence, Mark sought to amend his claim, so that he could pursue it on behalf of the estate. Unfortunately, Mark’s proposed amendment was barred by limitations, but the Supreme Court held that even if it was not, he failed to adduce special circumstances justifying the derivative claim.
British Columbia has codified the ability to bring a derivative action. It is contained in s. 151 of the Wills, Estates and Succession Act.[8] The section provides:
151 (0.1) In this section, “specified person” means a beneficiary, an intestate successor or a person who may commence a proceeding claiming the benefit of Division 6 [Variation of Wills] of Part 4 [Wills].
151 (1) Despite section 136 [effect of representation grant], a specified person may, with leave of the court, commence proceedings in the name of the specified person and on behalf of the estate of the deceased person
(a) to recover property or to enforce a right, duty, or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
(b) to obtain damages for breach of a right, duty or obligation owed to the deceased person.
151(3) The court may grant leave under this section if
(a) the court determines the specified person seeking leave
(i) has made reasonable efforts to cause the personal representative to commence or defend the proceeding,
(ii) has given notice of the application for leave to
(A) the personal representative,
(B) any other specified persons, and
(C) any additional person the court directs that notice is to be given, and
(iii) is acting in good faith, and
(b) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a specified person for the proceeding to be brought or defended.
Thus, an applicant has to satisfy the following five criteria to obtain leave to bring a derivative action under s. 151:[9]
- the applicant must be a “specified person” within the meaning of the section;
- reasonable efforts must have been made to have the executor commence the proceedings;
- notice must have been given to the required persons;
- the applicant must be acting in good faith; and,
- the court must be satisfied it is necessary or expedient for the proceedings to be brought.
There have been several applications under s. 151, most of which are referred to in Mischke v Mischke Estate.[10] However, Terezakis v Ekins[11] was not and I should like to review it briefly before I discuss the Mischke case because the two cases reach different results on the facts, and therefore the contrasting results can assist in understanding how the courts approach such applications.
Terezakis involved the following facts: A mother died in 2016. Her will directed that the residue of her estate be distributed equally between her three surviving children, a daughter, Angela, and two sons, Tony and John. The mother held title to one property. She held another property in joint tenancy with Angela, whom she named her executor. The mother had contributed $100,000 to its down payment and Angela claimed that this was a dowry gift from her mother but that she herself had paid all expenses in connection with the property since its purchase in 1993. Angela transferred this property into her own name after her mother died. Tony issued a notice of civil claim in 2017 in which he claimed that the mother had given Angela significant assets and money during her lifetime on the understanding that these would be held in trust for the benefit of all the surviving children. Then he brought an application under s. 151 to bring a derivative action to assert his claim that the property was held on resulting trust for the estate and to amend his notice of civil claim accordingly. John took Angela’s side. Angela acknowledged that Tony had made reasonable efforts to cause her to begin the proceeding and that he had given notice of the application to her. The court held also that Tony was acting in good faith, in a way that would benefit the estate and not solely himself. Further, it held that held that Angela was clearly in a conflict of interest and therefore it was necessary that the proceedings be brought. The court declined to consider whether Tony’s claims disclosed an arguable case, since not all the evidence was before the court and this application was not the proper occasion to adjudicate the action or amended action. Significantly the court ordered that the action should be styled as: ‘Angela Hrysoula Terezakis, in her capacity as executrix of the Estate of Aikaterini Terezakis v. Angela Hrysoula Terezakis’. Thus, it is clear that the action should be brought in the name of the executrix on behalf of the estate. The court also ordered that Tony would have carriage of the action and gave orders about examinations for discovery.[12]
The facts in Mischke are not dissimilar to those in Terezakis. A mother died in 2018. Her will named her three children, Lothar, Georgia, and Yvonne, as well as her three grandchildren, her beneficiaries. It named Lothar as her executor. Further, in 2008 the mother had granted powers of attorney to Lothar and Georgia. The mother lived in her house in West Vancouver with Yvonne until she broke her hip in 2004. Then she lived with Georgia and her family for four months but returned to live in her house with Yvonne thereafter. In 2007, the mother left her house again to live with Georgia and decided to sell her house. She served a notice on Yvonne to vacate the house. She lived with Georgia for the next four years. During this time she developed Alzheimer’s and, as her attorney, Lothar made monthly payments to Georgia from the mother’s bank account to cover her care. In 2012, the mother was placed in a care home and moved later to another, where she lived until her death.
Lothar brought an application for probate in 2018, which was granted, and in 2020 he filed an application to pass his accounts. Yvonne opposed this application. Then she brought a s. 151 application for leave to bring a derivative action in her name on behalf of the mother’s estate against Lothar and Georgia. In her proposed notice of civil claim, she sought declarations that Lothar was in breach of trust, for orders requiring Lothar and Georgia to provide a full accounting of their actions as attorneys,[13] and for an order requiring Lothar to repay expenses he incurred as attorney that were not authorized by the court. Yvonne advanced a number of grounds to justify the relief sought, including the monthly payments made to Georgia for her mother’s care, failure to account for use of the mother’s funds, Lothar’s sale of the mother’s house at an undervalue, Lothar’s implicit approval of his own accounts, and legal expenses Lothar incurred improperly on behalf of the estate. The parties agreed that the application for the passing of accounts would be adjourned until after the outcome of the s. 151 application.
The court agreed that the first and third conditions of s. 151, listed above, had been satisfied: Yvonne was a ‘specified person’ as a beneficiary, and she had given notice to the executor and the other beneficiaries of her claim. The court held that Yvonne had made reasonable efforts to have Lothar bring the proposed proceeding, particularly considering that Lothar was in a conflict of interest. Yvonne had also satisfied the onus on her to show that she was acting in good faith in that her concern with the manner in which Lothar and Georgia exercised their powers of attorney was genuine and not motivated simply by animosity toward her siblings.
However, the court concluded that it was not necessary or expedient for the protection of the estate, for Yvonne herself, or for any of the other beneficiaries, to bring the proposed proceeding. Much of Yvonne’s claim amounted to a response to Lothar’s application to pass his accounts as distinct from a proposal to commence new litigation and could be addressed in that application. Further, the court found that the estate had no arguable claim against Lothar and Georgia in relation to the payments made for the mother’s care or in relation to alleged withdrawals from the mother’s investments. As regards both issues, Yvonne’s evidence amounted to no more than a bare expression of concern. Nor did her evidence as regards the alleged under-value sale of the house contain any evidence of the actual value of the house. In any event, the sale was largely directed by the mother herself. As the court noted, even though the applicant does not have all evidence at hand, she must adduce at least some reasonably cogent evidence tending to show that her claim has merit. Yvonne failed to establish that her claims disclosed an arguable case and therefore her proposed action was not necessary or expedient for the protection of the estate. Accordingly, the court dismissed the application.
In many ways s. 151 is beneficial. For one thing, it brings derivative actions in estate litigation out of the closet and makes them readily accessible to litigants wanting to bring proceedings against an estate or against attorneys. A derivative action is useful, for example when the executor has caused a loss to the estate, since a beneficiary cannot sue him directly for the loss, although she may be able to sue him for any personal losses he may have caused. It may also be useful if the executor refuses to pursue a debt due to the estate, although the beneficiary could ask the executor to assign the debt to her, just as a trustee in bankruptcy can assign a debt to a creditor who wants to pursue a debt that the trustee has decided not to pursue.[14] However, an executor is likely to demand to be indemnified when he assigns a debt to a beneficiary.
But on the other hand, I wonder whether the statutory provision is necessary. We can do virtually all the things that a derivative action allows us to do in other ways. For example, we can:
- bring an action against the executor for breach of trust;
- bring an action against the executor for negligence in the discharge of her duties;
- bring proceedings to remove a trustee or executor and replace her with another person when that will benefit the estate and the beneficiaries;
- bring an action against an executor who holds title to property jointly with her deceased parent, which raises the presumption of resulting trust, and thereby casts the onus of rebutting the presumption on the executor; and
- bring an application for an order requiring an attorney or an executor to pass her accounts.
Moreover, courts have power to dismiss an action summarily for lack of any reasonably cogent evidence to support a claim. Similarly, they have power to reject an application to require an accounting. That being the case, do we really need a codification of derivative actions in estate litigation? Does it add an unnecessary level of proceedings to estate litigation?
However, if the action is for the benefit of the estate, the plaintiff will have to obtain leave to bring it, and it must be brought in the executor’s name, since it is the executor’s right and obligation to bring the action.
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[1] 2021 BCSC 1404, 60 ETR 4th 237.
[2] [1995] 2 AC 378 at 391.
[3] [2010] UKSC 22, [2011] 1 AC 240.
[7] Restatement (Second) Trusts, 1959, §282(2); Scott and Ascher, Trusts, 5th ed 1995, chapter 28, §28.1
[8] SBC 2009, c 13, amended SBC 2019, c 4, s 8(a), which added subs (0.1). The section is not unlike the derivative action provisions in corporations statutes, see, e.g., Business Corporations Act, RSO 1990, c B.16, ss 246-247; Canada Business Corporations Act, RSC 1985, c. C-44, ss 239-240.
[9] The list derives from Malacek v Leiren, 2021 BCSC 1052 at para 40, per Giaschi J.
[12] For a similar case in which the court also granted leave to bring a derivative action under s. 151 but which involved an intestacy, see Werner v. McLean, 2016 BCSC 1510, 19 ETR 4th 304.
[13] In para 16 the court unfortunately calls them ‘powers of attorney’. With respect, that is the equivalent of calling them pieces of paper, because that is what powers of attorney are. A power of attorney is a document in which the grantor appoints one or more persons as his attorney(s).
[14] Bankruptcy and Insolvency Act, RSC 1985, c B-3, s. 38
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(ii) EMBRACING CONTENT OVER FORM: UPCOMING CHANGE BROUGHT BY BILL 245 |
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By Rebecca Betel
As the clock strikes midnight this new year the Accelerating Access to Justice Act, 2021 (“Bill 245”) will bring some long-awaited estate law changes to life. Bill 245 will cement some of the more ad hoc legislative changes, like virtual witnessing of estate planning documents, and empower the Ontario Courts to embrace content over form—shedding its long held label as a province of strict compliance.
Some noteworthy changes brought by Bill 245 are the allowance for remote witnessing of power of attorney documents and wills (something that came as a necessity due to COVID-19), the introduction of marital separation as a change in circumstance vis-à-vis revocation, and provisions for Court-ordered validity of a will. Each of these changes highlights a departure from the strict application of the rules of execution for estate documents.
The rules of execution for powers of attorney and wills are historically—and notoriously—rigid. Under the new section 21.1 of the Succession Law Reform Act (“SLRA”), if the Court is satisfied that a document, although improperly executed, set out clear testamentary intention it may, on application, order that document as valid and effective “as if it had been properly executed or made”. For those of us practicing in estates law, it is unfortunately not uncommon to come across an estate document which is of no force and effect because it was improperly executed. This is sometimes even the case where the intentions of the testator are clear. Hopefully remote witnessing and Court-ordered validity will help ease some of the unfair outcomes intrinsic to legislative schemes of strict compliance.
Perhaps a more subtle legislative shift is the inclusion of marital separation as a change in circumstance for the purposes of revocation. Similar to its execution, revocation of a will is a formal process. Certain changes in circumstance, however, act as exceptions to the formal process, thereby giving effect to an intention to revoke without requiring formal revocation. Currently, under the SLRA, a change in circumstance includes divorce but not marital separation. The new section 17, however, provides for a separated spouse to be treated as having predeceased the testator for the purposes of interpreting a will.
More often than not, estate law deals with deeply personal client matters. Estate practitioners are often trying to squeeze the unique circumstances of each case into the confines of inflexible legislation. By embracing content over form, Bill 245 softens the edges around crucial estate planning documents and positions legislation to support the testator. Given the ongoing pandemic, in many ways 2021 has been a challenging year—here’s hoping that Bill 245 makes next year a little bit easier.
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(iii) SUPREME COURT OF CANADA OFFERS SOME IMPORTANT CLARIFICATION ON HOW COURTS ARE TO INTERPRET RELEASES |
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By Bryan Gilmartin and Natalie Kodsi
In the recent Supreme Court of Canada case of Corner Brook (City) v Bailey,[1] the highest Court provided insight into the law surrounding the drafting, interpretation, and scope of releases.
While driving a car owned by her husband, the respondent, Mrs. Bailey, struck an employee of the City of Corner Brook who was performing road work. The employee sued Mrs. Bailey. In a separate action, Mrs. Baily sued the City. Mrs. Bailey and the City subsequently settled and, in doing so, Mrs. Bailey signed a release, discharging the City from any further liability relating to the accident. Years later, in her defence against the employee, Mrs. Bailey brought a third-party claim against the City for contribution or indemnity. However, the City disagreed saying the release barred Mrs. Bailey from doing so. The Supreme Court was tasked with contemplating the law surrounding the interpretation of releases.
In retiring the “Blackmore Rule” which arose out the House of Lords decision of London and South Western Railway Co v Blackmore[2], the Court affirmed that releases should be interpreted in accordance with the regular rules of contractual interpretation as described in Creston Moly Corp v Sattva Capital Corp.[3]
The Law Governing the Interpretation of Releases
Years prior, in Sattva, the Supreme Court marked a significant change in the rules for the interpretation of contracts. Prior to Sattva, traditionally, the interpretation of contracts was a matter of law, not mixed fact and law, such that the words of a contract were given their “black letter” meaning with generally no consideration to circumstances surrounding the creation of a contract.
Sattva directed courts to break away from this thinking and look to the surrounding circumstances known to the parties (or which ought to have been known) at the time of the contract in interpreting the meaning of the words of a contract. The courts were instructed to “read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances[4] known to the parties at the time of formation of the contract.”[5] This Court in Sattva further explained that "[t]he meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement", but that the surrounding circumstances "must never be allowed to overwhelm the words of that agreement".[6] While the surrounding circumstances are relied on in the interpretative process, they cannot be used to deviate from the text such that it effectively creates a new agreement.[7]
In Estates Litigation, releases are common practice. Notably, releases are contracts. As such, they are to be interpreted using the general principles of contract as outlined above and in Sattva, meaning that the courts are obligated to give the words of the releases their ordinary and grammatical meaning, in a way that is consistent with the surrounding circumstances known to the parties at the time of the contract formation.[8]
Sometimes the ordinary meaning of the words and the surrounding circumstances come into tension, and courts must decide whether to rely on the surrounding circumstances to refine the meaning of the words, or whether doing so would impermissibly overwhelm the words of the agreements, in which case the words must override.[9] The Supreme Court in Corner Brook explains this tension may more often arise when interpreting releases for two reasons:
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Releases are often broadly worded – a general release, if interpreted literally, could prevent the releasor from suing the releasee for any reason, forever. While such releases may not be enforceable for other reasons (e.g., unconscionability), the circumstances may also often indicate that such extreme consequences are not what the parties objectively intended.
- Releases are often all-encompassing in scope such that it contemplates risks that at the time of the contract are unknown – this is an imprecise task that often gives rise to disagreement as to what was intended.
For these reasons, releases may more often lead to dissonance between the words of an agreement on their face and what the parties seem to have objectively intended based on the surrounding circumstances. The Court explained that, in resolving this tension, courts can be persuaded to interpret releases narrowly more so than other types of contracts.[10] The broader the wording of the release, the more likely this is to be so, but there is no obligation mandating this narrow interpretation.
Key Takeaways – What Are Some Good Release Drafting Practices?
The Court in Corner Brook goes on to explain how releases can be drafted to avoid the two above-noted issues of overbreadth. Ultimately, a release should be drafted in such a way that the parties can be said to have reasonably intended the release to apply only to claims, known or unknown, relating to a particular subject matter.[11] The context surrounding the release can serve as a limiting factor to the breadth of the wording[12], however, there are other good release drafting practices which can assist. To that end, the drafter ought to:
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Narrow releases to a particular subject matter and/or time frame: while a release can include both known and unknown claims, they should be those which the parties can be said to have reasonably intended the release to apply to as it relates to a particular subject matter. For instance, a mutual general release on a settlement of final partnership accounts ought to be confined to claims arising out of the partnership, and not be taken to preclude a claim that later came to light regarding something outside of the partnership, i.e., the roots from one partner’s property damaging the foundation of the neighbouring partner’s house.[13] In drafting narrowly, the drafter may want to include a relevant period of time that the release is intended to cover if appropriate;
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Explicitly contemplate unknown, future claims: by using words such as “including known and unknown claims” and/or “without limiting the generality of the foregoing” which are appropriately encompassing of the subject matter;[14]
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Draft with plain language: there is no need to create lengthy “catalogue” releases which describe all possible known and unknown claims, for instance: “any and all claims arising from xyz and without limiting the generality of the foregoing any and all claims, counterclaims or defences that can be pleaded in the fee dispute including tort claims, negligence claims, breach of contract claims, cost claims, etc.” Rather, language such as “any and all claims” will suffice to include all claims, except those of which are explicitly excluded in the release.[15] Lengthy lists run the risk of unnecessary limiting the coverage of the release if they are not appropriately drafted or caveated to be non-exhaustive.
In Corner Brook, because the parties narrowed the subject matter of the release to claims arising out of a particular event (the accident), there was no tension between the words and the surrounding circumstances. The release between Mrs. Bailey and the City encompassed claims Mrs. Bailey pursued against the employee. The release was circumscribed and nothing in the surrounding circumstances indicated that the words of the release should be interpreted to depart from what on a plain reading they would mean.
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[1] 2021 SCC 29 (“Corner Brook”).
[2] 1870 LR 4 HL 610: “The general words in a release are limited always to that thing or those things which were specifically in the contemplation of the parties at the time when the release was given”.
[3] 2014 SCC 53 (“Sattva”).
[4] Relevant surrounding circumstances "consist only of objective evidence of the background facts at the time of the execution of the contract..., that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting": Corner Brook at para 20, Sattva at para. 58.
[6] Sattva, at paras 48 and 57.
[8] Corner Brook, at para 21, Sattva, at paras 47-8.
[10] Corner Brook, at para 38.
[11] Corner Brook, at para 40.
[12] Corner Brook, at para 36.
[13] Corner Brook, at para 40.
[14] Corner Brook, at para 42.
[15] Corner Brook, at para 42.
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(iv) APPLE TAKES DIGITAL PLANNING INTO ITS OWN HANDS |
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By Daniel Paperny
Ontario and other Canadian jurisdictions have long-lacked comprehensive legislation that addresses who is authorized to access or manage a deceased person’s digital assets. To date, there is no law in this province or federally which addresses ownership and control over a deceased person’s digital assets (accounts, virtual property, social media), or what rights fiduciaries like estate trustees have to access such assets. Model legislation, in the form of the Uniform Access to Digital Assets by Fiduciaries Act, was proposed over 5 years ago, but has yet to be formally adopted in any jurisdiction, outside of Saskatchewan.
This has been flagged by many commentators as a concerning legislative gap, particularly as individuals amass more and more digital assets with increasing value (see: crypto currency, NFTs, viral social media, etc.). The paucity of legislative clarity has resulted in massive headaches for fiduciaries like estate trustees who need to access or secure a deceased loved one’s digital assets; in some cases requiring a Court Order just to access the digital accounts (including the deceased’s photos, emails) even when they are armed with clear proof of death and fiduciary authority under a will.
Apple’s latest iPhone update takes steps toward resolving this issue. On Monday December 13, 2021, Apple released its iOS 15.2 update which, in part, includes a “Legacy Contact” feature which allows iPhone user to designate individual(s) (Legacy Contacts) who may access the users Apple Account when they die. Essentially, the Legacy Contact feature allows iPhone users to designate the beneficiary(ies) of their Apple Account. Users can add up to five people as their “legacy contacts” who will be able to access the user’s Apple Account when the user dies.
Legacy contacts, once named, are then provided with an ‘access key’. Upon the death of the original account holder, legacy contacts may upload the access key to Apple’s webpage (digital-legacy.apple.com) along with a certificate of death, which is then reviewed by Apple. Following a review and approval by Apple, the legacy contact may create a new password and is provided with access to the deceased’s Apple Account and all the valuable data therein.
This brand new tool could provide much needed relief to executors or surviving friends or family who are looking to access a deceased person’s digital information. In the past, a court order may have been required to gain such access. Apple’s Legacy Contact feature appears to simplify that process, allowing iPhone users to designate the beneficiaries of their accounts, which designations will be recognized by Apple. Importantly, iPhone users should take steps to inform their chosen “Legacy Contacts” that they are named as such.
It will be interesting to see this new Apple feature in use, and whether other virtual platforms adopt similar designation tools.
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Osgoode Certificate in Elder Law
Predatory Marriages
April 7, 2022
Speakers: Kimberly Whaley and Albert Oosterhoff
Estate Planning and Litigation Forum
April 10 – 12, 2022
Osgoode Professional Development
April 12, 2022
Passing of Accounts
Chair: Kimberly Whaley
Canadian Centre for Elder Law (CCEL)
Elder Law Course
April 21, 2022
Chair: Kimberly Whaley
LESA 53rd Annual Refresher: Managing Wills & Estates Matters
April 30 – May 2, 2022
Decisional Capacity: A Wills & Estates Context
Speakers: Kimberly Whaley, Albert Oosterhoff and John Poyser
STEP Global Congress, London UK
July 7-8, 2022
Predatory Marriages
Speaker: Kimberly Whaley
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Check out our recent Feature Series which are posted on our Blog:
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VI. IN CASE YOU MISSED IT - RECENT BLOG POSTS |
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