WEL NEWSLETTER February 2022, Vol. 11, No. 11
Please accept our apologies. The previous copy of the February Newsletter contained an error where the text of one of the articles was repeated in another. This has been corrected in this revision.
Hello,

Happy Valentine’s Day - Happy Day of Looove 💕!! I hope you enjoy your day no matter where you are, who you are with, and what you are doing.
 
There has been some much-appreciated new hands-on-deck at WEL with the addition recently of experienced team members. We are looking forward to more exciting changes and additions in coming months and look forward to sharing this news with you.
 
January and February are almost a memory which means-more sunlight, sunshine, and hopefully warmer weather. I personally, cannot wait for this because it makes everything feel better. I know many colleagues have said how they wish they had more to look forward to and how they are so tormented by ongoing restrictions. Sunshine gets us part of the way there!
 
Given the ongoing, terribly tiring covid state-of-affairs, we continue to be bemused by stories of children, cats, dogs and seemingly unavoidable interruptions in otherwise what has been a very corporate, clinical forum where we conduct our business. The patience and understanding of professionals in these situations has been nice to see.
 
Doing business in our world right now has demonstrated our resilience and flexibility to embrace change and challenge. We have all stepped up to accommodate and make situations work regardless of limitations. Give yourself some recognition for this since we all know that this has not been an easy time.
 
With brighter days to come, I close as ever, by saying - Enjoy the Read,
Kim
I. WEL NEWS
1. ESTATE PLANNING COUNCIL OF CANADA
Kimberly Whaley was accepted as a member for the Estate Planning Council of Canada, February 2022.

2. MONEYWISE CANADA, FEBRUARY 2022   
Kimberly Whaley was interviewed by Sigrid Forberg and quoted in the article: “Financial abuse of seniors a growing problem amid pandemic isolation” in MoneyWise Canada, February 1, 2022.

3. THE GLOBE AND MAIL, FEBRUARY 9, 2022
Kimberly Whaley and Bryan Gilmartin’s article: “Four Changes to Ontario’s estate planning laws advisors and their clients need to consider” was published in the Globe and Mail on February 9, 2022. To read more on this article, click on the link:

4. WEL PARTNERS ON ELDER LAW NOW AVAILABLE AS AN E-BOOK
Our previously published resource book on Elder Law is now available in e-book format.

This publication addresses the well-known topics of capacity, undue influence, powers of attorney, and guardianship, the book also addresses discrimination against older persons, predatory marriages, and other topics. Prominent among the topics discussed is elder abuse in its various forms, including financial and physical abuse, civil and criminal law remedies to counter abuse, and protection of the elderly. As well, case law in areas such as predatory marriages, another form of elder abuse, have made it important to describe the vulnerability of the elders in such cases and others and to give guidance on how to prevent such abuses and predations. The book also covers end of life decisions and professionalism and ethics in dealing with vulnerable clients.

The book concludes with a number of appendices that contain helpful checklists on elder abuse, undue influence, and capacity, as well as a summary of capacity criteria.



II. SHOUT OUTS
LIONEL SMITH APPOINTED BY UNIVERSITY OF CAMBRIDGE AS DOWNING PROFESSOR OF THE LAWS OF ENGLAND
WEL congratulates Professor Lionel Smith who will be joining the University of Cambridge, Faculty of Law later this year as the Downing Professor of Laws of England. Professor Smith is currently the Sir William C. Macdonald Professor at McGill University. His academic history and contribution is impressive to say the least, holding degrees from Western University, Cambridge, Oxford, and Montreal.

The Downing Professorship is a very prestigious honour and was founded in 1800, supported from a bequest from Sir George Downing, the founder of Downing College. Previous holders have included Andrew Amos, FW Maitland, Sir William Ivor Jennings, Stanley de Smith, Gareth Jones and Sir John Baker. Professor Smith will take up the Chair in October 2022, following the retirement of Dame Sarah Worthington, whose distinguished tenure as Downing Professor will end on 30 September.


We look forward to learning of Professor Smith’s English adventures in the law and beyond. Best wishes from all of us at WEL.
III. LAW REVIEW
(i) CAN AN UNSIGNED HOLOGRAPH CODICIL BE PROBATED?
By Albert H. Oosterhoff
 
The recent case, BMO Trust Company v Cosgrove,[1] concluded that an unexecuted holograph codicil to a formal will could not be probated. This is an unexceptional conclusion and would not normally call for a blog, but I thought it might be useful to consider how the case might be decided under the new Ontario validation provision that took effect on 1 January 2022.

Nola Bogie made a formal will in 2004. She died in 2020. On or about 21 August 2017, she wrote a codicil in her own hand. It was not signed or witnessed but purported to change the formal will substantially. The applicant applied for an order directing that the codicil be admitted to probate.

On the cover page of the will the testator had written by hand, ‘Codicil attached. Nola Bogie 1 copy typed 1 copy handwritten’ and the words ‘The Last Will and Testament of Nola Louise Bogie April 23, 2004’. As she explained in both the handwritten and typed codicil, she made the typed codicil in case there were ‘any difficulties with reading handwriting’. The typewritten copy was also not signed or witnessed. On the typewritten copy, she typed ‘UPDATED ON printout copy Monday, August 21, 2017. This is NOT the date it is signed and witnessed. THIS IS THE TYPED DUPLICATE OF THE CODICIL TO BE CONSIDERED PART O[sic] THE LAST WILL AND TESTAMENT OF ME, NOLA LOUISE BOGIE, ACCORDING TO ONTARIO LAW’. She added that she was using colleagues as witnesses to the codicil. The codicil contained her written name and the concluding sentence of the codicil and the attestation clause both included her handwritten name, and the evidence confirmed that her signature was indistinguishable from the handwritten version of her full name.

In September 2017, the testator sent a signed handwritten letter to the Law Society asking for her will, which was in the Law Society’s possession, since the licence of the lawyer who drafted it had been suspended. In the letter she said, ‘I have just completed a handwritten Codicil making changes to this Will (not yet signed)’.

Dietrich J held that the holograph codicil was not signed by the testator and could therefore not be admitted to probate. Her Honour considered the statutory requirements for the execution of holograph wills, including the requirement that it must be signed. She focused in particular on s. 7(1) of the Succession Law Reform Act,[2] which says that the signature must be placed ‘at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will’. She concluded that in writing her name a number of times in the holograph codicil, including the attestation clause, the testator did not intend to give legal effect to the codicil. The document was unfinished. Among other things, it was undated. It contained blanks for the date and the evidence supported the conclusion that the testator intended to insert the date when she was to sign it, and that she appreciated the need to sign the document.

This does not mean that the testator’s handwritten name in the attestation clause cannot serve as a signature. It can if the testator intended it to serve as his signature and to give effect to the document as expressing his testamentary intentions.[3] Cases in some jurisdictions hold that the document can be effective even if the handwritten name appears at the top of the document, so long as the testator intended it to serve as his signature.[4] However, in Ontario this seems possible only if the handwritten name appears at the end of the document, because s. 7(1) of the SLRA, quoted above, states expressly that this language also applies to holograph wills.[5]

How would a case like this be decided if it the testator died after 1 January 2022, when s. 21.1 of the SLRA came into effect?[6] Subsection (1) provides:

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.
 
I suppose that since the subsection speaks of a document ‘not properly executed’, it could be interpreted as meaning that some of the formalities’ provisions must have been complied with. But I doubt that this will happen. The subsection was intended not as a substantial compliance provision, but as a validating provision.[7] In any event, in this case there was some compliance with the formal requirements in that the codicil was in writing.[8]

What matters for the purpose of s. 21.1(1) is that the document ‘sets out the testamentary intentions of the deceased’. It could be argued that Ms Bogie’s codicil set out her testamentary intentions. However, in my opinion, in considering the application of s. 21.1, the court would likely come to the same conclusion as Dietrich J did in the original case. The codicil expressed certain testamentary intentions of the deceased, but they were not final, since she had not signed the document and she knew that she had to sign it in order to make it valid. Thus, the court would have to conclude that it did not incorporate her testamentary wishes.[9] Similarly, if the ‘document’ consists of a note in a journal entry that was meant only as a note to the testator herself it cannot be validated, since it does not represent the testator’s final testamentary wishes.[10]

In a similar case, Cates v Quinn,[11] the British Columbia Supreme Court held that a will drafted by a lawyer but which the testator never signed, despite being reminded to do so, did not represent his fixed and final testamentary intentions, and could not be validated.

Cases in other jurisdictions hold that textual material that comes after the testator’s signature does not prevent validation.[12] Some hold that the validating provision does not override the statutory requirement that the document be signed by the testator.[13] However, in Rempel Estate v Dudley[14] the court held that a will that is stored electronically can be validated, even if it is not signed, so long as it represents the deceased’s fixed and final testamentary intentions. For a similar case, see Re Hubschi Estate.[15]

Thus, although other issues can be raised too, the overwhelming criterion under the different validating provisions is that the document in question incorporates the testator’s final testamentary intentions.

Obviously, the validating provision cannot be used if the testator lacked capacity when she made the will.[16] Nor can it be used if the will was procured by undue influence.[17] On the other hand, if a will can be validated under the validating power but there are allegations of suspicious circumstances, the court can order the will to be proved in solemn form.[18]

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[1] 2021 ONSC 5681, 70 ETR 4th 118.
[2] RSO 1990, c. S.26.
[3] See, e.g., Re Arena Estate, 2020 ABQB 206.
[4] See, e.g., Wood v Smith, [1992] 3 All ER 556 (CA); Schultz v Schultz, 2016 ABQB 367, 21 ETR 4th 315.
[5] See Re Clarke, 1982 CarswellOnt 816, 29 OR 2d 392.
[6] The section was added to the SLRA by the Accelerating Access to Justice Act, 2021, SO 2021, c 4, Sched 9, s 5. Note that subsection (3) of s 21.1 provides that subsection (1) applies if the deceased died on or after the day section 5 of Schedule 9 came into force.
[7] Legislation such as. s. 58 of the British Columbia’s Wills, Estates and Succession Act, SBC 2009, c. 13 (‘WESA’), is quite clear on this point. It says in subsection (3) ‘Even though the making … of a will does not comply with this Act’, the court may validate it.
[8] Section 58(1) of WESA provides that a validation order can be made even if the document is not in writing, but is recorded or stored electronically, can be read by a person, and is capable of reproduction in visible form.
[9] Cf Kube v Kube, 2013 SKCA 49, 6 ETR 4th 159.
[10] Re Hadley Estate, 2017 BCCA 311.
[11] 2016 BCSC 1226, 21 ETR 4th 299.
[12] See e.g., Oh v Robinson 2011 SKQB 200, affirmed 2012 SKCA 27, 74 ETR 3d 187, leave to appeal refused (2012), 440 NR 192 (note SCC); Re Estate of Jean Agnes MacDonald Marsden, 2017 NBQB 199, 33 ETR 4th 333, affirmed sub nom. Marsden v Talbot, 2018 NBCA 82, 46 ETR 4th 125; Re Briggs (1985, 21 ETR 127 (Man QB).
[13] Woods v Cannon, 2014 ABQB 614, 4 ETR 4th 44. See also Montreal Trust Co of Canada v Andrezejewski (Committee of) (1994), 6 ETR 2d 42 (Man QB); George v Daily (1997), 143 DLR 4th 273 (Man CA); Re Mate Estate, 2000 SKCA 63, 35 ETR 2d 256; Re Nielsen Estate, 2012 SKQB 15, 76 ETR 3d 211; Komonen v Fong 2011 NSSC 315, 72 ETR 3d 153.
[14] 2020 BCSC 1766, 62 ETR 4th 38.
[15] 2019 BCSC 2040.
[16] Weselowski v Weselowski, 2003 MBQB 191, 239 DLR 4th 407, additional reasons 2004 MBQB 11, 5 ETR 3d 161.
[17] Pahlanuk v Moore Estate, 2013 MBQB 82, 87 ETR 3d 55.
[18] Re Craig Estate, 2018 ABQB 830, 41 ETR 4th 276.

(ii) SHOULD YOU BE ABLE TO SHARE IN YOUR COMMON LAW PARTNER’S INTESTATE ESTATE?
By Albert Oosterhoff

1. Introduction

Most of the amendments to the Succession Law Reform Act,[1] that were made by the Accelerating Access to Justice Act, 2021,[2] took effect on 1 January 2022. The estates bar has become reasonably familiar with them by now. There are obviously questions about the meaning of some of the provisions and how the court will apply the amendments, but they will be answered over time.

While I am delighted with the amendments, I believe that the SLRA is due for a major revision. The Act is more than 40 years old, and it is showing its age because it has not kept up with societal changes. There have been some amendments to it over the years, but they have resulted in a patchwork of provisions that has rendered the Act far from perspicuous in many respects. So, I hope that a major revision will happen in the foreseeable future.

2. Common Law Partners

In this blog I should like to explore a possible amendment to the SLRA that would allow common law spouses to be able to share in their partners’ intestate estates. For now, in Ontario, only married spouses have that right.[3] All of the western provinces and territories allow common law partners to share in their partner’s estate.[4] Thus, we have plenty of models to consider and that is what I shall now do. In addition, In Nova Scotia, when a person, who lives together with another person in a conjugal relationship, registers a domestic-partner declaration under the provisions of the Vital Statistics Act,[5] she has the same rights as a spouse under the Intestate Succession Act[6] and under other statutes.

Note that when I speak of the right of a common law partner to ‘share’ in her intestate partner’s estate I mean only that she can share with descendants of the intestate. There is another sense of share as well and that is whether a surviving common law partner can share with the intestate’s surviving spouse. As explained below, only a small number of western provinces make provision for such sharing by more than one ‘spouse’. The recent British Columbia case, Boughton v Widner Estate,[7] is an example of such sharing between a wife and a common law partner. Both were treated as ‘spouses’ under WESA and therefore both had a right to share in the estate.

The western statutes do vary in their provisions, in some cases significantly. Moreover, their definitions of common law spouses also vary. They speak variously of common law spouses, marriage-like relationships, adult interdependent partners, and other terms. To make things simpler, and without intending to belittle the various definitions,[8] I shall use the following uniform terms: ‘spouse’ for a person who was married to the intestate or ‘surviving spouse’ after the intestate’s death; and ‘common law partner’ for a person who was in a marriage-like relationship with the intestate or ‘surviving common law partner’ after the intestate’s death.

3. Overview of Western Statutes

This is a summary of the various statutes as regards the rights of a spouse and a common law partner. Please note that the summary focuses on the right of a common law partner to share in the intestate estate of his partner. I do not, therefore, provide a detailed summary of the rest of the statutes’ provisions. However, I point out that some of the statutes deny a right to share if the spouse or common law partner and the intestate are separated.

The share to which a spouse and a common law partner are entitled varies depending upon the number of children that survive the intestate, but I draw attention to the fact that in Alberta, British Columbia, and Manitoba the surviving spouse or surviving common law partner will take either a larger preferential share or the entire estate if the surviving children are the children of both the intestate and the surviving spouse or surviving common law partner than if the surviving children are not the children of either the surviving spouse or surviving common law partner.

Alberta permits a spouse or a common law spouse to share in the intestate’s estate. If the intestate is survived by both a spouse and a common law partner, the spouse and the common law partner are each entitled to one-half of the share allotted to a ‘spouse’ by the Act in those circumstances, which is subject to the rights of any descendants. (Alberta Act, ss. 61 and 62).

British Columbia provides that if two or more persons are entitled to a spousal share, they share it equally if they agree or otherwise as the court determines. The spousal share is a preferential share and a distributive share. The preferential share varies in amount depending upon whether or not descendants are descendants of the intestate and the surviving spouse or surviving common law partner (British Columbia Act, ss 21 and 22).

Manitoba defines ‘common law partner’ of an intestate to mean a person who with the intestate registered a common-law relationship under the Vital Statistics Act,[9] or cohabited with the intestate in a conjugal relationship for the period prescribed by the legislation. The legislation provides that if the intestate is survived by both a spouse and one or more common law partners, the spouse or common law partner whose relationship with the intestate was most recent takes over the other or others (Manitoba Act, ss 1(1) and 3(3)).

Saskatchewan’s legislation also defines ‘spouse’ to include a legally married spouse or a common law partner (Saskatchewan Act, ss 2, 6). The spouse’s share consists of what is in effect a preferential share plus a distributive share that varies with the number of children that survive. The Act makes no provision for when the intestate is survived by a spouse and a common law partner.

The Northwest Territories legislation is very similar to Saskatchewan’s. It also makes no provision for when the intestate is survived by a spouse and a common law partner (Northwest Territories Act, ss 1 and 2).

The Nunavut legislation is very similar to that of the Northwest Territories. However, the preferential share is less (Nunavut Act, ss 1 and 2).

The Yukon legislation is different. It defines the term ‘common law spouse’ but does not give the common law spouse a right to share in the intestate’s estate. Instead, the court has power to make an order that so much of the intestate’s net real or personal estate, or both, as the court sees fit, shall be awarded as an allowance to the common law spouse. The rest goes to the spouse and issue (Yukon Act, ss 1, 74, and 80-82).

Thus, while Alberta, British Columbia, and Manitoba permit sharing or all or part of the estate between a surviving spouse and a surviving common law partner, Saskatchewan, Northwest Territories, and Nunavut allow either a surviving spouse or a surviving common law partner to take but do not provide for sharing if there is more than one ‘spouse’. And Yukon does not allow a common law partner to share in the estate, but instead gives the court power to order an allowance in favour of a common law spouse.

4. Which Should We Choose?

With such a large selection of statutory models before us, which should we choose for Ontario? I think that the ones that do not give a right to a common law partner to share with a surviving spouse should not be followed. So that leaves the Alberta, British Columbia, and Manitoba legislation. I like aspects of all of them but find the British Columbia legislation rather complex. Besides, I find the sharing section strange in that I suspect most spouses and common law partners are unlikely to agree to apportion the estate between them. And I would rather not give the court the casting vote. Thus, I prefer the Manitoba legislation. It is simple but certain: only one person is entitled. A good alternative is Alberta’s legislation, which gives both parties an equal share. I am aware that my preference is a very personal one and others may favour of a different solution, which is fine.

Regardless of which model we choose, support claims that survive against the intestate will have to be protected and given priority. The recent addition to the SLRA of s. 43.1 referred to above, will also have to be adjusted to apply to common law spouses. As mentioned above, some of the Western statutes make similar provisions for separated spouses and common law partners.

5. Other Desirable Reforms

Of course, the SLRA is not the only statute that ought to be revised. There are several other legislative changes that I should like to see. Here is my inexhaustive list:

  1. Enact the Uniform Trustee Act, 2012,[10] albeit with some changes. Thus far only New Brunswick has adopted it, though not in its entirety.[11] We should do so too. It is a great improvement on current, outdated, legislation. It also incorporates revisions to variation of trusts legislation.
  2. Repeal the law of perpetuities, including the Perpetuities Act,[12] and the law of accumulations as inscripturated in the Accumulations Act.[13] Some provinces have got rid of these and for good reason. We no longer need them.
  3. Repeal the Settled Estates Act.[14] As a dutiful ‘colony’, Ontario enacted it in the 19th century as a copy of an early English version of an eponymous English Act. But since we never had settled estates in Ontario it made no sense to import it here and in fact it is not used.
  4. Enact the Uniform Benevolent and Community Crowdfunding Act by the Uniform Law Conference of Canada in 2020.[15] It supplanted the Uniform Informal Public Appeals Act of 2011.[16] Saskatchewan was the only province that enacted the latter and applied effectively to address issues regarding the large surplus raised in response to the Humboldt Broncos traffic accident. Without such legislation a court will have great difficulty in resolving such issues. A similar event will undoubtedly happen here at some point. And what (without such legislation) will poor robin do then, poor thing?
  5. Repeal the Estate Administration Tax Act, 1998.[17] The tax it raises is small and it is a bureaucratic nightmare.
  6. Modernize the laws governing the administration of estates. That means enacting one modern Administration of Estates Act that incorporates the substance of the current Estates Act,[18] and the Estates Administration Act,[19] but thoroughly revises it and brings it into the 21st century. At the same time, I hope that this will lead to the abolition of the unfortunate term ‘estate trustee’ and the full restoration of the terms ‘executor’ and ‘administrator’ in the Rules of Civil Procedure.

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[1] RSO 1990, c. S.26 (‘SLRA’).
[2] SO 2021 c 4, Sched 9 (‘AAJA’).
[3] Unless the ‘spouses’ are separated when one of them dies. See SLRA, s. 43.1, added by the AAJA, Sched 9, s 6.
[4] These are the statutory provisions that define ‘spouse’ to include a common law partner. I shall refer to the statutes hereafter without further citation.
Intestate Succession Act, C.C.S.M., c. I85, s. 1(1); R.S.N.W.T. 1988, c. I-10, s. 1(1) [which incorporates the definition of “spouse” in s. 1(1) of the Family Law Act, S.N.W.T. 1997, c. 18]; R.S.N.W.T. (Nu.) 1988, c. I-10, s. 1(1), as amended by S. Nu. 2011, c. 25, s.13 [which incorporates s. 1(1) of the Family Law Act, S.N.W.T. (Nu.) 1997, c. 18, which was itself amended by S. Nu. 2011, c. 25, s. 8]; Intestate Succession Act, 2019, S.S. 2019, c. I-13.2, s. 2; Estate Administration Act, R.S.Y. 2002, c. 77, s. 1; Wills and Succession Act, S.A. 2010, c. W-12.2, s. 1.1(1)(a) [which incorporates the definition of “adult interdependent partner” of s. 1(1)(a) of the Adult Interdependent Relationships Act, S.A. 2002, c. A-4.5]; Wills, Estates and Succession Act, SBC 2009, c 13, s. 2 (‘WESA’).
[5] RSNS 1989, c 494, s 54.
[6] RSNS 1989, c 236.
[7] 2021 BCSC 325.
[8] Of course, I recognize that Alberta uses the unique term ‘adult interdependent partner’ instead of ‘common law partner’.
[9] CCSM c V60. This is like the Nova Scotia provision mentioned above.
[10] https://www.ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Trustee-Act_1.pdf.
[11] Trustees Act, SNB 2015, c 21.
[12] RSO 1990, c P.9.
[13] RSO 1990, c A.5.
[14] RSO 1990, c S.7.
[15] https://www.ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Benevolent-and-Community-Crowdfunding-Act_2.pdf. See also my blog, http://welpartners.com/blog/2020/08/the-uniform-benevolent-and-community-crowdfunding-act/.
[16] https://www.ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Informal-Public-Appeals-Act-(Common-Law)_2.pdf.
Full disclosure, I was a member of both Working Groups which prepared the reports that led to the promulgation of the Uniform Acts. See also my blogs, http://welpartners.com/blog/2018/07/public-appeals/, and http://welpartners.com/blog/2018/08/public-appeals-update-on-the-humboldt-broncos-memorial-fund/.
[17] SO 1998, c 34, Sched.
[18] RSO 1990, c E.21.
[19] RSO 1990, c E.22.
(iii) DAMAGES IN FATAL CLAIMS
By Laya Witty
 
On the very last day of 2021, the Ontario Superior Court of Justice issued a judgment regarding damages against the Islamic Republic of Iran in the matter of the shooting down of Ukraine International Airline Flight PS 752 on January 8, 2020.[1] The court had earlier issued a judgment in respect of the liability in this matter, but the December 31 judgment of Belobaba J., addresses and important point regarding the damages claims that are available when death is the result of culpable actions by one or more persons.
 
As a case involving international terror and an intentional killing of civilians, there are elements that are distinguishable from most cases of injury resulting in death, but it nevertheless serves as an example of the claims that are available and should be considered in these tragic circumstances.

Originally, in the common law, the claim for compensatory damages died with the injured person. The purpose of these damages was to make the person whole, and when this is no longer possible, there was no claim available. However, in legislation that was originally the Fatal Accidents Act, and has now been incorporated into the Family Law Act at section 61, was introduced to allow for a claim to be made by a close family member for the losses that they suffered in respect of the death of their family member. These losses include both the special damages in regard of their expenses in caring for the person, and an amount for the “loss of care, guidance and companionship”:
 
Right of dependents to sue in tort
61 (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.[2]

61 Damages in case of injury
(2) The damages recoverable in a claim under subsection (1) may include,...
(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. R.S.O. 1990, c. F.3, s. 61 (2).
 
In addition to the Family Law Act claims, the Trustee Act at section 38 allows for the estate of the deceased to make any claims that the decedent could have made himself.[3]
 
Actions by executors and administrators for torts
38 (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.

This has opened the door for a claim to be made for the pain and suffering of the person who was injured, in the time between the moment of injury and their actual demise. In this particular case, the two missiles that hit the airplane struck 30 seconds apart, and the plane took another 4 minutes to fall from the sky. In recognition of the injuries and the unimaginable terror of the passengers on the plane, Justice Belobaba ordered damages of $1M for each of the plaintiffs.
 
It is to be noted that this is an exception to the usual cap on general damages for pain and suffering in negligence actions in Ontario, which was originally set at $100,000.00 in 1978 and is currently valued at approximately $400,000.00. Justice Belobaba indicated that the cap on damages does not apply to cases of intentional tort, and therefore he could award the higher amount. Similarly, he awarded $200,000 for each of the eligible FLA claims in this matter. He also awarded punitive damages in the amount of $100,000,000.00.
 
It is to be noted that this was effectively a default judgment as the Islamic Republic of Iran has chosen not to defend these claims. At this point, the enforcement of this judgment is unlikely since Iran does not keep assets in Canada. Nevertheless, the reasons and quantum in this case will set an important precedent in claims for injuries resulting in death.

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[1] Zarei v. Iran, 2021 ONSC 8569 (CanLII)
[2] Family Law Act, R.S.O. 1990, c. F.3, s. 61 (1); 1999, c. 6, s. 25 (25); 2005, c. 5, s. 27 (28).
[3] Trustee Act, R.S.O. 1990, c. T.23
(iv) THE CURIOUS CASE OF HENRY DARGER
By Daniel Paperny
 
For his entire life, American artist Henry Darger was completely unknown to the outside world. He lived his life as a total shut-in, a loaner, a recluse, detached from society at large. That all changed when Darger died in 1973, and his artistic genius was uncovered and then shared with the world, garnering Darger with international fame and fortune, posthumously.
 
Like many great artists, Darger’s brilliance was not discovered until after his death, however, Darger’s case is especially noteworthy, since his talent was not only hidden from the public, but from all other people, due to his extremely reclusive life.
 
Darger had no close family or friends to speak of, and nobody to share his art with. When his artwork was finally discovered by his landlords shortly before he died, it was widely disseminated, and gained international prestige and significant value. Now, estate litigation brews between Darger’s distant relatives (who never knew him) and those who discovered, propagated, and benefitted from Darger’s art in the 40 years since his death.
 
Darger lived his entire life in Chicago, Illinois. He was born there in 1892 and died there in 1973. Darger led a modest and isolated existence in Chicago where he worked as a custodian at a hospital and lived alone. He lost both of his parents before reaching the age of majority, he never married, he never had children. For the last 43 years of his life, he lived in a single room apartment on Chicago’s North Side.
 
Unbeknownst to the world, aside from his work as a janitor, Darger spent his days filling up his apartment with his artistic creations; mostly colourful illustrations and writings bound in a 15,000+ page book enclosing his works.
 
Darger’s works were not discovered until he was hospitalized in the year before his death and his landlords, Nathan, and Kiyoko Lerner, entered his apartment and discovered the incredible works of art within.
 
The Learners’ say that Darger told them, before he died, that he did not care what happened to the works, they could be discarded and that the Lerners’ could do whatever they liked with the art that filled Darger’s apartment to the brim. 
 
Rather than throwing Darger’s works away and simply renting out his apartment to a new tenant as some landlords may have done, the Lerners’ recognized Darger’s brilliance, they brought his art to a local dealer and then spent decades fostering and growing Darger’s legacy as an “outsider artist” by publicizing his art and distributing it around the world.
 
His art gained international recognition and attention from the art world not only because of the fantastical beauty of his works but because of the intrigue surrounding his story as a quintessential recluse, an outsider artist.

His works are now featured prominently in the collections of the Museum of Modern Art, the American Folk-Art Museum, The Art Institute of Chicago and the Smithsonian. One of his illustrations sold for around $750,000 at an auction at Christie’s Paris in 2014.

Unsurprisingly, with the fame and fortune that had been impressed upon Darger’s estate, individuals claiming to be Darger’s legal descendants have recently surfaced, seeking control over Darger’s works or at least the copyright that attaches to them.

A group of approximately 50 people claiming to be Darger’s distant relatives – most of them cousins twice or three times removed, who never met Darger or even knew of him before he died – have brought a legal claim in Illinois probate court alleging that the Lerners did not have the legal right to benefit from Darger’s art, and filed a “petition for determination of heirship” in January, 2022.

A hearing in Cook County Court is now scheduled to proceed on February 23, 2022.

The Darger Estate case raises many facsinating legal questions that are now before the Illinois Probate Court. Firstly, did Darger have the requisite mental capacity to gift his works to the Lerners when he was ill and so shortly before his death? Even if he was capable of giving his art over to the Lerners, would the underlying legal copyright to the intellectual property have transferred to the Lerners as well? If not, then who is rightfully entitled as an heir of Darger’s estate to benefit from his works and/or the copyright to them? If no legal heirs existed at the time of his death, then there is a presumed chain of succession that would see Darger’s estate devolve to the State of Illinois.

It will be interesting to see how the Darger Case unfolds. Will the Lerners - who went to such great lengths over many decades to salvage, foster and broadcast Darger’s works – be deemed to have rightfully benefitted from Darger’s art? If not, then are any of the individuals now claiming to be surviving family entitled as heirs of his estate? Or, will the benefit ultimately fall to the State of Illinois?

Regardless of how this plays out, Darger’s story is unquestionably unique, and at the same time it recalls some basic lessons that estate litigation often reveals. Estate planning is crucial, well-documented communication with family, friends, acquaintances is key, and it is important for all of us, before we are gone, to turn our minds to our own legacies and think about the ways we’d like to be remembered.
"OUTSIDER, the amazing story of Henry Darger" is a seven part podcast series that explores his life story and "sheds light on multiple issues including how we define and identify artists, the complex relationship between mental health and creativity, as well as the question of elitism in the world of art." https://podtail.com/podcast/outsider-the-amazing-story-of-henry-darger/
IV. UPCOMING PROGRAMS
Malvern Seniors Active Living Fair
Powers of Attorney
Speaker: Bryan Gilmartin

Law Society - 19th Real Estate Law Summit
April 6, 2022
Use of Powers of Attorney in Real Estate Transactions
Co-Speakers: Kimberly Whaley and Larry Enfield 

Osgoode Certificate in Elder Law
Predatory Marriages
April 7, 2022
Speakers: Kimberly Whaley and Albert Oosterhoff
 
CBA Elder Law Section
April 7, 2022
Assessing Incapacity in a Digital World
Speaker: Bryan Gilmartin

Estate Planning and Litigation Forum
April 10 – 12, 2022
New Developments in Case Law – panel discussion with Peter Glowacki, John Poyser, Craig Vander Zee, and Deidre Herbert
 
The Osgoode Intensive Program in Wills & Estates
Osgoode Hall Professional Development
April 19, 2022
Powers of Attorney and Guardianship: Non-Contentious and Contentious Matters
Speaker: Kimberly Whaley

Canadian Centre for Elder Law (CCEL) Elder Law Course
April 21, 2022
Co-Chairs: Kimberly Whaley, Geoff White, Krista James and Hugh McLellan
 
Osgoode Professional Development
April 26, 2022
Passing of Accounts
Chair: Kimberly Whaley
Speakers: Albert Oosterhoff, Tracey Phinnemore, Bryan Gilmartin with Ian Hull, Office of the Children’s Lawyer (OCL) and Office of the Public Guardian and Trustee (PGT)
 
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
 
Canadian Lawyer Webinar
May 18, 2022
Speakers: Kimberly Whaley and Ian Hull
 
The International Academy of Estate and Trust Law (TIAETL)
May 22-26, 2022
2022 Annual Meeting, Washington, DC

LSO 6-Minute Estate Lawyer
May 25, 2022
Proving Due Execution
Co-Chairs: Ian Hull and Andrea Hill
Speaker: Kimberly Whaley
 
STEP Global Congress, London UK
July 7-8, 2022
Predatory Marriages
Speakers: Kimberly Whaley, Louise Lewis and Daniel Holloway
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WEL NEWSLETTER February 2022, Vol. 11, No. 11