WEL NEWSLETTER May 2021, Vol. 11, No. 2
Hello,

Happy May! I started googling the month of May when venturing into this month’s newsletter. Apart from the obvious reasons to embrace May-like, flowers and trees budding and blooming, warmth in the air, sunshine abound, and surviving the pandemic in the comfort of engaging in outdoor activity again, May as it turns out, is a hub for international and national events and in other countries a whole host of like designated tributes.
 
Did you know for example, that May boasts World Turtle Day bringing attention to helping them survive and thrive; Health Promotion Month with 27 different conditions being promoted and recognized on our Government of Canada Website; International Hummus Day with Hummus recipes for breakfast, lunch and dinner; World Naked Gardening Day (yes-you read correctly!); World Bee Day, acknowledging both the role of bees in pollinating our ecosystem, and, the pioneer of beekeeping; World Schizophrenia Day; International Day of UN Peacekeepers; and, Asian Heritage Month.

This last one stands out as a current and necessary opportunity to learn more about Canadians of Asian descent and the apropos theme for 2021 being, “Recognition, Resilience, and Resolve” and a call for all Canadians to unite in eradicating all forms of anti-Asian racism and discrimination. The Government of Canada webpage dedicated to Asian Heritage Month can be accessed here: https://www.canada.ca/en/canadian-heritage/campaigns/asian-heritage-month.html.

May is named after the Greek goddess, Maia, the daughter of Atlas and Pleione. May therefore brings us some ancient Greek history. We have a long weekend in May celebrating Queen Victoria’s Birthday. We have Mother’s Day, celebrating the gift of our Moms. There are many reasons to celebrate May-so celebrate if you can.
 
In my view, the real message from this 2nd pandemic-plagued-May is gratitude. Gratitude for health, for family, strength to persevere and to survive, to be in a position to help support others through significant loss and hardship and receive support. There is a lot of suffering going on around the world presently and we must take time to acknowledge and understand the extent-some have increased hardship due to war, civil strife and unrest and other sufferings and injustices which compound and complicate the journey through this world pandemic.
 
Thank you for your continued support. Stay Safe.
 
Enjoy the Read,
 
Kim
I. WEL NEWS
1. OBA, HOFFSTEIN BOOK PRIZE, 2021
Congratulations to Matthew Rendely who will be the recipient of the 2021 OBA Hoffstein Book Prize. The Hoffstein Book Prize was created to recognize contributions and/or achievements by younger members of the Ontario Bar Association to the area of wills, trusts and estates.

2. OSGOODE PROFESSIONAL DEVELOPMENT, POWERS OF ATTORNEY AND GUARDIANSHIP: NON-CONTENTIOUS AND CONTENTIOUS MATTERS, APRIL 27, 2021
Kimberly Whaley presented her updated article: “Powers of Attorney and Guardianship: Non-Contentious and Contentious Matters” at the Osgoode Professional Development program on April 27, 2021. 


My gratitude to Osgoode Professional Development who kindly made a donation to the Lawyers Feed the Hungry Program as a token of appreciation on behalf of the speakers. 
3. CANADIAN LAWYERS WEBINAR, MAY 4, 2021
Ian Hull and Kimberly Whaley presented the Canadian Lawyers Webinar on: “The Top 10 Things Estate Professionals Should Know About Death and Capacity”, on May 4, 2021.
 
4. TORONTO LAWYERS ASSOCIATION APPOINTMENT
Well done Paul Murphy who has been appointed to the Advocacy Committee and the Family & Estates Committee at the Toronto Lawyers Association. 
5. LAW SOCIETY OF ONTARIO, SIX-MINUTE ESTATES LAWYER, MAY 13, 2021
Kimberly Whaley presented her article on: “Medical Assistance In Dying: 
What You Need To Know About The New MAiD Regime” at the LSO Six-Minute Estates Lawyer program on May 13, 2021.

6.  LAW SOCIETY OF ONTARIO, SIX-MINUTE ESTATES LAWYER, MAY 13, 2021
Justice Gilmore presented at the Six-Minute Estates Lawyer on: “View from the Bench: Judging Estates Disputes During Covid-19” and made the following suggestions and comments for Estates hearings during COVID-19:
    
  • Discussions with counsel MUST take place before the date of the case conference, or scheduling conference-do not get caught out-do not do it in the 10 minutes before

  • Send a blacklined order to court of orders sought

  • Send in materials even if it is a scheduling appointment-judges want to know what the matter is about in any event even if only for scheduling

  • Business attire: gentlemen jackets & ties - always; ladies business attire - always

  • No beds etc… in background - if need be, blur background. Be professional! Always

  • Do not underestimate your time-the time given will be strictly enforced otherwise there is a domino effect of lateness for the judge for every follow on matter after you!

  • Need more time? Ask in advance-not on the day!
7. NEW ESTATE LIST CONFIRMATION FORM, MAY 21, 2021
The Estates List confirmation form has been updated and can be found in the list of Toronto forms on the SCJ website. The two old forms that it replaced were removed (Confirmation: Scheduling Appointment and Confirmation: Hearing Matter).
 
Also, please note that for the time being, probate applications and requests for associated orders (e.g. dispense with bond) and passings of accounts will continue to be emailed to the court and not uploaded into CaseLines. This decision will be revisited once these materials can be e-filed using the JSO portal.
8. ESTATES, TRUSTS & PENSIONS JOURNAL, 2021
Kimberly Whaley and John Poyser’s article: “Inter vivos Versus Testamentary Undue Influence: Origins, Differences and Recent Development” was published in the Estates, Trusts & Pensions Journal, Vol. 40 E.T.P.J. 269, 2021
9. ONTARIO’S LONG TERM CARE COVID-19 COMMISSION (LTCC) FINAL REPORT, APRIL 2021
The Ontario’s Long-Term Care COVID-19 Commission finalized its report in April 2021. This report focuses on the actions and inactions that significantly contributed to the devastation experienced in long-term care during the COVID-19 pandemic and can be accessed at:

10. CANADIAN JOURNAL OF PSYCHIATRY, MAY, 2021
Susceptibility to Undue Influence:The Role of the Medical Expert in Estate Litigation will soon be published in the Canadian Journal of Psychiatry. Kimberly Whaley co-authored this publication with Dr. Nathan Hermann, Dr. Kenneth Shulman, and Deidre J. Herbert. The publication will be accessible through SAGE Open Access Portal.
11. GLOBE AND MAIL, MAY 5, 2021
Laroux Peoples was interviewed and the article appears in the Globe and Mail: “Why millennials’ wills and estate plans are so unique” published on May 5, 2021.

II. SHOUT OUTS
STEP TORONTO VOLUNTEER OF THE YEAR 
WEL congratulates Jeff Halpern on being selected as “volunteer of the year” by the STEP Toronto Board.
 
Jeff is a very long-standing member of STEP, having joined in Singapore in 1997. Over the years Jeff has been very active with STEP, both globally and locally. Jeff served for many years on the STEP Worldwide Professional Development Committee. Jeff has been a reliable, contributing member and STEP Toronto has benefitted greatly from his hard work and enthusiasm. Congratulations Jeff on this very well-deserved recognition!
2021 CANADIAN LAW AWARDS WINNERS AND EXCELLENCE AWARDEES 
WEL congratulates the winners and awardees of the 2021 Canadian Law Awards:
 
III. LAW REVIEW
(i) CANADIAN POWER OF ATTORNEY & GUARDIANSHIP REGIME: FOREIGN ORDERS, RESEALING & JURISDICTIONAL ISSUES
Co-authored by Kimberly Whaley, Bryan Gilmartin, and Henry Howe

This is an abridged version of the full paper. Link to the full paper in PDF format: https://welpartners.com/resources/WEL-2021-Powers-of-Attorney-Jurisdictional-Issues.pdf

INTRODUCTION

As people and their assets have become more mobile in recent years, the need for interjurisdictional approaches to substitute decision-making has increased. Many people own property in more than one jurisdiction. Some travel frequently between jurisdictions, spending part of each year in one and the rest in another. Others have more permanently moved in the course of their lives, but continue to maintain strong connections to the places they moved from. These situations are especially common among the elderly.

It is therefore necessary that laws governing powers of attorney (“POAs”), guardianship, and other substitute decision-making mechanisms adapt to an increasingly globalized world. Ontario’s government has taken steps to address this need in sections 85 and 86 of the Substitute Decisions Act (the “SDA”)[1] which address the recognition of foreign POAs and guardianship orders. However, as demonstrated in the case of Cariello v Father Michele Perrella,[2] there remain gaps in the legislation that can severely limit its usefulness.

Without updated legal mechanisms, incapable people and their substitute decision-makers might encounter various practical issues. While foreign powers of attorney are relatively easily recognized in Ontario, the difficulty of having any guardianship order from outside of Canada recognized could create confusion, uncertainty, and barriers to any action to meet an incapable person’s needs. Attorneys and guardians are deeply involved in nearly all aspects of an incapable person’s life, including property, personal finance, and healthcare decisions. A bank might refuse to act on a foreign POA for property if it is not satisfied that the POA is recognized in Ontario, and an incapable grantor might have no recourse in this situation without a court order. Absent any recognized guardian of the person or attorney for personal care, a healthcare provider might turn to a different substitute decision-maker under the terms of the Health Care Consent Act,[3] despite a substitute decision-maker having already been chosen by the incapable person or a court.

There are various ways in which the legislative gaps could be addressed by the government. A simple regulation could at least partially resolve the immediate problem with section 86, though not the underlying flaws of Ontario’s current approach to choosing which foreign guardianship orders to recognize. Other provinces and territories have developed different legislative methods of dealing with foreign POAs and guardianship orders, and Ontario could use one of these or its own Rules of Civil Procedure[4] as a model for legislative amendments. There may also be some relief available to parties affected by the current legislative flaws under the rules of private international law, though this approach does not appear to have been tested yet, and is not certain to offer any relief at all.


Section 85 of the SDA governs the recognition of foreign POAs. Section 86 governs the resealing of foreign court orders with respect to guardianships or like duties under S.86(1), which is the process by which those orders can be officially recognized and enforced by the Ontario court. For the purposes of these sections, a “foreign POA” or “foreign order” is one that was made in any jurisdiction outside of Ontario, which includes any other province or territory of Canada.
 
Section 85

Section 85 provides that a POA is considered validly executed if, at the time of its execution, it “complied with the internal law,” excluding choice of law rules,[5] of any of the following places:

(a) The place where the POA was executed
(b) The place where the grantor was then domiciled; or
(c) The place where the grantor had their habitual residence.[6]

In other words, a POA is valid in Ontario if it was validly executed in either the jurisdiction where it was executed or the jurisdiction where the grantor lives. The same rules also apply to the revocation of a POA.[7]

Section 85 does not allow for the complete reciprocal enforcement of foreign law with respect to the valid execution of a POA, as it includes the following qualifiers:

(4) If, under this section or otherwise, a law in force outside Ontario is to be applied in relation to a continuing power of attorney or a power of attorney for personal care, the following requirements of that law shall be treated, despite any rule of that law to the contrary, as formal requirements only:

1. Any requirement that special formalities be observed by grantors answering a particular description.
2. Any requirement that witnesses to the execution of the power of attorney possess certain qualifications.[8]

(5) In determining for the purposes of this section whether or not the execution of a continuing power of attorney or power of attorney for personal care conforms to a particular law, regard shall be had to the formal requirements of that law at the time the power of attorney was executed, but account shall be taken of an alteration of law affecting powers of attorney executed at that time if the alteration enables the power of attorney to be treated as properly executed.[9]

The rules in section 85 apply to both powers of attorney for property and powers of attorney for personal care.[10]


Section 86 applies to any court order from outside of Ontario that:
  • appoints a person;
  • to have “duties comparable to those of a guardian of property or guardian of the person”; and,
  • for another person who is at least 16 years old.[11]
  • An order of this nature can, on an application to the court, be resealed if:
  • The order was made in another province or territory of Canada; or
  • The order was made in any other jurisdiction prescribed by the government of Ontario.[12]

An application for resealing must include both a copy of the foreign order that either bears the foreign court’s seal or has been certified by some officer of that court, and a certificate stating that the order has not been revoked and is of full effect.[13] Once an order has been resealed, it has the same effect in Ontario as a guardianship order made under the SDA, and is subject to any SDA provisions or court-imposed conditions with respect to an Ontario guardianship order.[14]

Subsection 90(g) authorizes the Lieutenant Governor in Council to make a list of prescribed jurisdictions for the purposes of section 86.[15] Currently, none exist.


Although section 85 is a useful and fairly straightforward tool for the recognition of foreign POAs, section 86 appears to be of limited use in addressing contentious guardianship proceedings that involve orders from outside of Canada. The reason for this problem is that the government has so far not prescribed any jurisdiction to which section 86 can be applied by the courts. Section 86 does allow for any guardianship order made in Canada to be resealed, but so far appears to be completely ineffective with respect to an order made anywhere else. Without a list of prescribed jurisdictions, the SDA effectively provides no mechanism at all for the recognition of a non-Canadian order, and the court can effectively only recognize a Canadian order.

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[1] SO 1992, c 30
[2] 2013 ONSC 7605
[3] SO 1996, c 2, Sch A
[4] RRO 1990, reg 194
[5] SO 1992, c 30 at s 85(2)
[6] SO 1992, c 30 at s 85(1)
[7] SO 1992, c 30 at s 85(3)
[8] SO 1992, c 30 at s 85(4)
[9] SO 1992, c 30 at s 85(5)
[10] SO 1992, c 30 at s 85(6)
[11] SO 1992, c 30 at s 86(1)
[12] SO 1992, c 30 at s 86(2)
[13] SO 1992, c 30 at s 86(3)
[14] SO 1992, c 30 at s 86(4)
[15] SO 1992, c 30 at s 90(g)
(ii) WHY DOES ONTARIO HAVE ESTATE TRUSTEES?
By Albert H. Oosterhoff

Time was when Ontario, along with all other common law jurisdictions had executors and administrators. These are persons who administer a deceased person’s estate and are sometimes referred to by the collective title ‘personal representatives’. An executor may have to obtain letters probate to administer the estate. In the case of an intestate estate, the court can appoint an administrator to administer the estate. Similarly, if the deceased died with a will, but failed to appoint an executor, or the named executor predeceases the testator or is unable or unwilling to take on the office, the court can appoint an administrator with the will annexed.
 
But all that changed in Ontario in 1994 when new rules were drafted and incorporated into the Rules of Civil Procedure[1] to replace the former Probate Rules. Since then, executors, administrators, and administrators with the will annexed are referred to promiscuously as ‘estate trustees’. Similarly, ‘letters probate’, ‘letters of administration’, and ‘letters of administration with the will annexed’ are now referred to as “certificate of appointment of estate trustee’. Well, not quite, for r. 74.01 defines ‘certificate of appointment of estate trustee’ as ‘letters probate, letters of administration or letters of administration with the will annexed’. Similarly, it defines ‘estate trustee’ as ‘an executor, administrator or administrator with the will annexed’. For some reason, the rule does not redefine the collective term ‘personal representative’.
 
The need for the definitions in r. 74.1 is probably in part because the several statutes dealing with estates were not amended to change the terminology. Thus, for example, the Estates Act[2] still speaks of ‘letters probate’, ‘grant of probate’, or simply ‘probate’.[3] And it also continues to speak of ‘letters of administration’.[4] Indeed, the Rules themselves continue to speak of executors and administrators, and about probate and administration.[5] Finally, the Estates Administration Act[6] continues to define ‘personal representative’ a ‘an executor, an administrator, or an administrator with the will annexed’,[7] and it uses that collective term in the rest of the Act.[8]
 
So why did Ontario adopt the term ‘estate trustee’ and related terms in the Rules in 1974 and why was this change not carried forward into the statutes? The Ontario Law Reform Commission recommended the adoption of the term ‘estate trustee’ in a 1991 report on the administration of estates.[9] The Commission took the view that, in general, the position of personal representatives should be assimilated to that of trustees, except as regards the initial appointment to their office. It said:
 
Thus, personal representatives should have the same administrative powers as trustees, and should be subject to the same rules governing transmission of their office, liability to others, compensation for their efforts, and suspension and termination of their office.[10]
 
However, the report then went on to say:

In furtherance of our recommendation to assimilate the office of personal representative to that of a trustee, we recommend that a new term should be used to signify this change. Whether appointed by the will or the court, personal representatives are to be called ‘estate trustees’.
 
The Commission did recognize that not all distinctions between personal representatives and trustees are insupportable.[11] Certainly those that reflect functional differences should be retained, but others are merely historical anomalies.[12]
 
I agree with the basic premise of the Commission. In many cases the differences between the two offices do not make sense and thus assimilation of the powers and obligations of trustees should generally apply also to personal representatives. Most of the Commission’s detailed recommendations are excellent and they should have been adopted.
 
However, I disagree strongly with the Commission’s recommendation to adopt the new term ‘estate trustee’ for several reasons.
 
1.  It is true that the Commission recognized that some differences remain between the two offices. But the new term disregards those differences and in effect equates the offices of personal representative and trustee for all purposes. And that, in my view, is extremely dangerous. I have written extensively about the importance of recognizing and applying the continuing distinct roles of courts in the exercise of their probate and construction functions.[13] I have also written about the distinction between executors and trustees as regards the title to the property they administer.[14] In the latter article I highlighted the point that executors are not trustees by reference to the opinion of Viscount Radcliffe in the leading case, Commissioners of Stamp Duties (Queensland) v. Livingston.[15] His Lordship made it clear that beneficiaries under a will and on an intestacy do not have a property interest in the property under administration, since the full, unfragmented title is in the executor or administrator while the administration continues. His Lordship noted that executors and administrators do have various fiduciary duties, but that those duties do not convert the office into a trust. In that context his Lordship said:

What equity did not do was to recognise or create for residuary legatees a beneficial interest in the assets in the executor’s hands during the course of administration. Conceivably, this could have been done, in the sense that the assets, whatever they might be from time to time, could have been treated as a present, though fluctuating, trust fund held for the benefit of all those interested in the estate according to the measure of their respective interests. But it never was done. It would have been a clumsy and unsatisfactory device from a practical point of view; and, indeed, it would have been in plain conflict with the basic conception of equity that to impose the fetters of a trust upon property, with the resulting creation of equitable interests in that property, there had to be specific subjects identifiable as the trust fund. An unadministered estate was incapable of satisfying this requirement. The assets as a whole were in the hands of the executor, his property; and until administration was complete no one was in a position to say what items of property would need to be realised for the purposes of that administration or of what the residue, when ascertained, would consist or what its value would be.[16]
 
In that article I also explained that the statutory ‘trust’ created by s. 2(1) of the Estates Administration Act[17] is not a true trust, since its purpose was simply to make the interests of the beneficiaries equitable so that they would no longer be subject to artificial destruction by the common law remainder rules and their derivatives.[18]
 
By calling executors and administrators ‘estate trustees’ the rules give the impression that they are trustees just as much and in the same way as someone who has been appointed a trustee is. One might think that this is not so, but the danger is real. See, for example, r. 74.16. It deals with the passing of estate accounts and provides:

Rules 74.17 and 74.18 apply to accounts of estate trustees and, with necessary modifications, to accounts of trustees other than estate trustees...[19]
 
This rule clearly equates the two offices, but in my opinion this is an egregious error. A personal representative is not a trustee.
 
It seems that courts on occasion will also equate or confuse the two offices. Arguably that is what happened at first instance in Re Milne Estate,[20] in which Justice Dunphy stated incorrectly that a will is a form of trust and, although the matter was still in the probate stage, he purported to interpret an asset allocation clause.[21] The case was reversed on appeal.[22]
 
2.  I think that it was a mistake to make the change in the Rules in any event since the change was not made in the governing statutes. Surely the latter govern and the Rules should not diverge from them.
 
3.  Ontario is the only common law jurisdiction that has adopted this change. So we stick out like sore thumb and we constantly have to explain to our clients and to lawyers in other jurisdictions what the terms ‘estate trustee’ and ‘certificate of appointment of estate trustee’ mean.

4. Now we are stuck with cumbersome titles, such as ‘certificate of appointment of estate trustee’ instead of the simple ‘letters probate’ and ‘letters of administration’.
 
In my opinion therefore the change was a foolish one and ill-advised. I assume that someone on the Rules Committee in 1994 thought the new title ‘estate trustee’ was a great idea and adopted it. But no matter how the change came about, I believe that it was an error and we ought to go back to the old terminology.

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[1]      R.R.O. 1990, O. Reg. 194, as amended, rr. 74 and 75.
[2]      R.S.O. 1990, c. E.21.
[3]      Ibid, e.g., ss. 6, 7, 11(1). See also Macdonell, Sheard and Hull on Probate Practice, 5th ed. by Ian M. Hull and Suzana Popovic-Montag (Toronto: Carswell, 2016), p. 295.
[4]      Ibid. s. 1. And see Macdonell, ibid., p. 311.
[5]      See, e.g., rr. 9.01, 9.02, and 9.03.
[6]      R.S.O. 1990, c. E.22.
[7]      Ibid., s. 1. And see identical definitions in s. 1(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, and in s. 1 of the Trustee Act, R.S.O. 1990, c. T.23.
[8]      See, e.g., ss. 2(1), and 3.
[9]   Ontario Law Reform Commission, Report on Administration of Estates of Deceased Persons (Toronto, 1991)
[10]     Ibid., p. 2
[11]     Ibid., pp. 6, 13-17.
[12]     Ibid., p. 11.
[13]    Albert H. Oosterhoff, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv. Q. 316.
[14]    Albert H. Oosterhoff, ‘Locus of Title in an Unadministered Estate and the Law of Assent’ (2018), 48 Adv. Q. 41.
[15]     [1965] A.C. 694, [1964] 3 All E.R. 692 (P.C. Qld.)
[16]     Ibid. p. 708 A.C.
[17]     R.S.O. 1990, c. E.22.
[18]     Oosterhoff, ‘Locus of Title’. footnote 14, supra, §2.7.
[19]     Emphasis supplied.
[20]     2018 ONSC 4174 (S.C.J.)
[21]     See my blogs, ‘What Is a Will and What is the Role of a Court of Probate’, http://welpartners.com/blog/2018/09/what-is-a-will-and-what-is-the-role-of-a-court-of-probate/; ‘What Is a Will and What is the Role of a Court of Probate Redux: Re Milne and Re Panda’. http://welpartners.com/blog/2018/11/what-is-a-will-and-what-is-the-role-of-a-court-of-probate-redux-re-milne-and-re-panda/.
[22]     2019 ONSC 579 (Div. Ct.).
(iii) WHEN CAN A JUDGE SIT IN THE TESTATOR’S ARMCHAIR?
By: Albert H. Oosterhoff
 
The answer to the above question is obviously not that at some point in interpreting a will the presiding judge may sit in easy chair, put up her feet, and ‘veg out’. The sentence, ‘Sit in the testator’s armchair’, is not an invitation to relax. It is not cast in the indicative mood, but is hortatory in nature and therefore the sentence is cast in the imperative mood. In other words, it exhorts the judge to get to work.
 
The direction to sit in the testator’s armchair addresses the kind of evidence the judge may consider in interpreting the will. It refers specifically to her ability, indeed, her obligation to consider extrinsic evidence, that is evidence of the testator’s circumstances at the time he made his will.
 
But the question remains, when should she sit in the testator’s armchair and consider such evidence? In the past the law required that the court first read the will and determine what the language used meant. If that process led to a sensible meaning, that ended the interpretation, even if it was obvious that the testator intended a different result. Only if the initial process did not lead to a sensible conclusion was the court permitted to consider surrounding circumstances. A simple example will illustrate the problem. Suppose a testator makes a will which says only, ‘All for mother’. When he made his will, his mother was alive, but extrinsic evidence shows that he customarily referred to his wife, the mother of their children, as ‘mother’. Under the strict construction approach the testator’s mother would take ‘all’ and his wife would receive nothing.[1] This approach is referred to as the 19th century, strict or objective approach to construction and it led to all kinds of erroneous interpretations of wills.[2] Lord Denning, among others, fulminated against this approach and said in dissent in one case:[3]
 
It seems to me that the fallacy in that argument is that it starts from the wrong place. It proceeds on the assumption that, in construing a will, ‘It is not what the testator meant, but what is the meaning of his words’. That may have been the nineteenth-century view; but I believe it to be wrong and to have been the cause of many mistakes. I have myself known a judge to say: ‘I believe this to be contrary to the true intention of the testator but nevertheless it is the result of the words he has used’. When a judge goes so far as to say that, the chances are that he has misconstrued the will.
 
He also said that what you (i.e., the judge) should do is, ‘place yourself as far as possible in [the testator’s] position, taking note of the facts and circumstances known to him at the time; and then say what he meant by his words’.[4] He also mentioned that a Chancery judge was once said to have remarked that a group of dissatisfied testators, whose souls the ferryman Charon had carried across the river Styx, were waiting on the other side of the river to receive the judicial personages who misconstrued their wills, presumably to take out their wrath upon them.[5]
 
Fortunately, we no longer have to put up with that strict construction approach. Today we follow the more liberal, subjective approach to construction. It allows the court to admit evidence of surrounding circumstances immediately when it begins to consider the meaning a will. In other words, the court does not wait to sit in the testator’s armchair until after it discovers that it cannot read the will sensibly without it. Still, there are some traces of the old approach in the cases, which sometimes suggest that the court should first read the disputed passage in a will to try to ascertain its meaning before it considers evidence of surrounding circumstances. Although I think that the Ontario Court of Appeal reached the correct conclusion in the recent case, Ross v. Canada Trust Company,[6] it believe that the reasons contain hints of the old practice. I think that is regrettable and inconsistent with modern cases.
 
For example, in Haidl v. Sacher,[7] the Saskatchewan Court of Appeal took the position that the court should sit in the testator’s armchair immediately, as Lord Denning suggested. So did Laidlaw J.A. in Re Burke,[8] when he said:
 
Each Judge must endeavour to place himself in the position of the testator at the time when the will was made. He should concentrate his thoughts on the circumstances which then existed and which might reasonably be expected to influence the testator in the disposition of his property. He must give due weight to those circumstances in so far as they bear on the intention of the testator. He should then study the whole contents of the will and, after full consideration of all the provisions and language used therein, try to find what intention was in the mind of the testator. When an opinion has been formed as to that intention, the Court should strive to give effect to it and should do so unless there is some rule or principle of law that prohibits it from doing so.[9]
 
Similarly, in Hicklin Estate v. Hicklin,[10] the Alberta Court of Appeal stated:

67   When should a court admit and rely on extrinsic material?
 
68   Some judges believe that a court may not admit and review extrinsic evidence unless they have concluded that the text supports more than one plausible meaning or introduces an ambiguity.[11]
. . .
75   Others are unwilling to impose any onerous preconditions to the admissibility of extrinsic evidence. They rely on extrinsic evidence if it assist[12] in ascertaining the meaning a testator attached to a word used in the will. They understand that context … may influence the meaning a testator attributes to a word:[13]
 
A second school of thought is willing to explore extraneous material without demanding that an initial assessment of the clarity of the words of the will be undertaken. It encourages a court to review proferred [sic] extrinsic evidence....
 
Supporters of this school believe that the meaning of words a testator has used may not be accurately divined without a grasp of the context in which they were expressed and an understanding that the same words may bear different meanings in different contexts.
 
76   The latter approach is correct - extrinsic evidence ... is admissible. Its admissibility is not dependent on a finding that a word is capable of more than one meaning or that an ambiguity exists. This approach is theoretically sound and inherently practical….
 
77    It is theoretically sound because it promotes an accurate assessment of the testator’s wishes:[14]

It is the court’s role to give effect to the testator’s intention. This is an indispensable function the exercise of which perfects the transferal process the testator commenced when she signed her will.
 
To be faithful to the testator’s will, a court must identify the meaning the testator wished to convey by her choice of words. This can only be done, in many cases, if the court has access to relevant evidence which records information, in existence at the time the testator signed her will, about the testator’s family and the nature of various family relationships, close friends, interests and many other facts which might influence the testator when engaged in the will-making process. A court, aware of important information about the testator, must carefully read the entire will, giving the words she selected or approved their ordinary meaning.
 
78   The correct approach is practical because the admissibility standard it introduces is not onerous and there will be few contests as to whether proferred [sic] extrinsic evidence is admissible.
 
79   To repeat, this approach allows “[p]arties who advance a claim to property the testator disposes under her will and others with a legitimate interest in ensuring that the testator’s intentions are honoured”[15] to present evidence that they think will assist the adjudicator to discharge his or her judicial task.
 
Thus, modern case law endorses the view that to interpret a will properly, you have to sit in the testator’s armchair at the outset and read the entire will and the provisions that cause difficulty in light of the surrounding circumstances.
 
The Court of Appeal does say as much in Ross, for in paragraph 37 it quotes the above passage from Re Burke, which adopts this view, and see also paragraph 41. However, the quotations from Feeney’s Canadian Law of Wills,[16] referred to in paragraphs 38 and 39, contain the suggestion that the first step is still to read the provisions that are in doubt to see if the court can find a clear meaning from them and should only resort to the armchair rule if it can’t. With respect, that is a relic of the old strict construction approach and should be abandoned, because it can lead to interpretations the testator did not intend, as in the Thorn case referred to above.[17]
 
With that in mind, let us look at the facts of the case. The testator, Sarah Grafton, had two daughters, Margaret and Mary. Mary never married, but Margaret did and had five children: Jane, Gordon, Graeme, Grafton, and James. Sarah died in 1971, Jane died in 2015, Mary died in 2002, and Margaret died in 2015. Jane died intestate and her estate passed to her parents and thence to Margaret when her husband died. Margaret left her estate to Gordon.
 
Clause 3(C) of Sarah’s will left her cottage for the use and enjoyment of her daughters for the life of Mary. After the death of the survivor of Margaret and Mary. the executors were to transfer the cottage to my grandchildren as joint tenants, but if they did not agree unanimously to accept the transfer, the executors had to sell the property to strangers and to hold the residue in trust for my said grandchildren in equal shares, to be distributed to them in accordance with the residue provision in Clause 3(I)(iii). The executors also had power to sell the real property if they should think it advisable, to invest the proceeds, and pay the annual income equally to Mary and Margaret, and on the death of the survivor to distribute the residue of the proceeds among the said grandchildren in equal shares in accordance with the residue provision in Clause 3(I)(iii). (Emphasis supplied.)
 
Clause 3(I)(iii) provided that the residue should be divided into six equal parts and to divide one such equal part equally among the issue of Margaret, living at my death. (Emphasis supplied.)
 
Gordon argued that the proceeds of sale of the cottage should be divided into five equal shares, because they had to be distributed in accordance with Clause 3(I)(iii) of the will. Under that clause Jane was included, since she was living at Sarah’s death. And since Gordon had inherited Jane’s share via his mother, Gordon claimed to be entitled to two of the five shares. The other grandchildren argued that the proceeds of sale of the cottage should be divided into four equal shares and divided among the four surviving grandchildren, in accordance with Clause 3(C).
 
The motion judge, Broad J., concluded that the references to Clause 3(I(iii) in Clause 3(C) caused interpretational difficulties that did not permit him to ascertain Sarah’s intention solely from the plain meaning of the langue used in the Will (see paragraph 25, clause (vii) of the Court of Appeal’s summary of the reasons of Broad J.). Broad J. then applied the armchair rule. Based on the evidence of the surrounding circumstances and the language of Clause 3(C), in particular the italicised passages, all of which suggested that Sarah wanted to keep the cottage in the family, Broad J. concluded that Sarah did not intend that the beneficiaries of a deceased grandchild could take an interest in the cottage or its sale proceeds (para. 27). Thus, the procedure followed by Broad J., seems to have been first to determine if the provisions of the will were clear, and only when he found that they were not did he turn to the armchair rule.
 
The Court of Appeal reviewed and endorsed the interpretation and methodology of Broad J., including the fact that the motion judge first determined that the provisions of the will were not clear, but created a patent inconsistency, and only then resorted to the armchair rule (paras. 49-51).
 
For the reasons stated above, and with great respect, I believe that this is incorrect and that the court should interpret the will from the outset with the aid of extrinsic evidence. But in other respects I fully agree with the reasons for judgment.
 
The case raised three other issues that should be mentioned. The first was the standard of review for the interpretation of a will by a lower court. The court held, rightly, in my opinion, that, absent an error of law, today the standard is no longer correctness, but a deferential standard, citing Trezzi v. Trezzi,[18] Zindler v. The Salvation Army,[19] and Hicklin Estate v. Hicklin.[20]
 
The second issue arose out of the respondents’ cross-appeal. They agreed with the judgment of the motion judge, but disagreed with how he reached his conclusion. As the court rightly noted, an appeal to the Court of Appeal lies only from a ‘final order’ of a judge of the Superior Court of Justice.[21]
 
You cannot appeal a judge’s reasons for judgment. Thus the cross-appeal was misconceived.
 
The third issue was whether the motion judge failed to apply the presumption of early vesting, as Gordon argued. While the court agreed that there is such a presumption, it is only a presumption and it yields to a contrary intention in the will. It should be applied only if the court has doubts about the testator’s intention (para. 58). Since the motion judge had concluded that, properly interpreted with the aid of the armchair rule, the testator did not intend that all grandchildren share in the proceeds of sale of the cottage, only those living at the time of the sale were entitled to share in it. Thus the interests of the five grandchildren were not vested a morte testoris (i.e., at the death of the testator).

-

[1]    The example is taken from Thorn v. Dickens, [1906] W.N. 54. In fact, the testator’s mother predeceased him, so the will created an ambiguity and that let in the extrinsic evidence
[2]    You will find a number of examples of such egregious interpretations in Oosterhoff on Wills, 9th ed. by Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters / Carswell, 2021), §13.6.2(a).
[3]    Re Rowland, [1963] 1 Ch. 1 at 9-10 (C.A.).
[4]    Ibid., p. 10.
[5]    Ibid. In Perrin v. Morgan, [1943] A.C. 399 (H.L.) at 415, Lord Atkin made the same comment.
[6]    2021 ONCA 161.
[7]    1979 CarswellSask 131, 7 E.T.R. 1 (C.A.).
[8]    1959 CarwellOnt 98, [1960] O.R. 26.
[9]    Ibid., para. 5, emphasis supplied.
[10]   2019 ABCA 136, 46 E.T.R. (4th) 1.
[11]     Tottrup v. Patterson (1969), [1970] S.C.R. 318 (S.C.C.), 322 (”if the meaning is clear, surrounding circumstances cannot be looked at to throw a doubt upon that meaning:); Smith v. Home of the Friendless, [1932] S.C.R. 713 (S.C.C.), 719 (”where [the testator’s language] ... is ambiguous, we are entitled to consider not only the provisions of the will, but also the circumstances surrounding and known to the testator at the time when he made the will”) ….
[12]   Hanson v. Mercredi, 2014 ABCA 216 (Alta. C.A.), ¶ 52; [2014] 10 W.W.R. 41 (Alta. C.A.), 62 per Wakeling, J.A. (”To determine whether the testator intended to create a trust or a power of appointment ... the Court must identify the meaning the testator attached to the words of the will, taking into account any other relevant evidence which may assist the Court to ascertain the testator’s intention”).
[13]   Hanson v. Mercredi, 2014 ABCA 216 (Alta. C.A.), ¶¶ 9, 59 & 60; [2014] 10 W.W.R. 41 (Alta. C.A.), 70-71 per Wakeling, J.A. See also … Marks v. Marks (1908), 40 S.C.R. 210 (S.C.C.), 212 & 220 per Idington J. (”we are bound to read his language in light of all the circumstances that surrounded, and were known to him when he used it and gave effect to the intention it discloses when so read” & “I prefer to read the ordinary meaning ... of the words used ... in light of surrounding circumstances in accordance with common sense”) ….
[14]   Hanson v. Mercredi, 2014 ABCA 216 (Alta. C.A.), ¶¶ 8 & 9; [2014] 10 W.W.R. 41 (Alta. C.A.), 50 per Wakeling, J.A. See also Re Burke (1959), [1960] O.R. 26 (Ont. C.A.), 30 ….
[15]   Hanson v. Mercredi, 2014 ABCA 216 (Alta. C.A.), ¶ 11; [2014] 10 W.W.R. 41 (Alta. C.A.), 51 per Wakeling, J.A.
[16]   4th ed, by Ian Hull and Suzana Popovic-Montag (Toronto: LexisNexis, 2020)
[17]   In the text at footnote 1, supra.
[18]   2019 ONCA 978, para. 15.
[19]   2015 MBCA 33, para. 10.
[20]   Footnote 10, supra, paras. 10 and 94-95
[21]   The court cited, inter alia, R. v. Sheppard, 2002 SCC 26, para 4, as authority for the proposition.
IV. BOOK REVIEW
DIGITAL EXECUTOR: UNRAVELLING THE  NEW PATH FOR ESTATE PLANNING
By Kimberly Whaley
 
Sharon Hartung kindly provided me with a digital advanced reader copy of her most recent book: ‘DIGITAL EXECUTOR. Unraveling the New Path for Estate Planning’. You may recall my review of Sharon’s first book on the subject, ‘YOUR DIGITAL UNDERTAKER: Exploring Death in the Digital Age in Canada’. 
   
I read all 7 chapters within 1 ½ days. While I would like to have you believe this was an easy read, I have to be honest and tell you that though it was interesting, informative and thought provoking, it filled me with anxiety about the fast moving pace of technology, the growing extent of digital asset holdings, and all of the ancillary and associated planning, record keeping, rules, risks, user agreements, licenses, security, and protocols for digital asset preservation and retrieval during incapacity and after death.

This read instilled in me the urgency of current estate planning, incapacity planning and estate administration from a digital asset perspective. Sharon talks about the implications for every individual regardless of the size of the clients’ digital footprint, or value attributed to same. The question of how one’s executor will administer digital assets after death will much depend on in-life planning.

Sharon describes the intent of her book, “to raise awareness on digital assets and the impact the internet and technology have on estate planning and financial and wealth management across the death care and estate industries”. The book explores four avenues:

  1. The context of where technology fits in a client’s estate, an advisor’s profession, and organizational practices;
  2. The fundamental reasons why the digital topic is critical to advisors;
  3. A deep dive into various digital assets within a client’s port- folio, introducing an advisor to the technical management and user aspects of the topic. This section is the bulk of the book;
  4. The book leaves the reader with a context of where digital assets sit in the broader digital transformation underway in the estate industry, and the impact this transformation is likely to have on individual businesses serving clients and their estate fiduciary and advisors.

Sharon addresses industry transformation and generational affects including on Millennials, GenZ, and Coronials (a newly minted term for those born during Covid-19). I finally know and think i understand what a “blockchain” is, and cryptocurrencies...well kind of! 

IT hygiene during life is discussed-though i can say, I generally hate IT-just ask my IT providers. They might even just hate me as much as I hate IT! My general disdain for IT however is not going to make it disappear or even remain static for me to have a hope of catching up or ever using it to its full capacity.

Sharon impresses on her reader that an individual’s physical and digital estates are intertwined, and as such estate professional advisors must stay current as jurisdictional legislation and case law evolve.

Sharon uses examples of certain technology providers such as Facebook, Google as permitting pre-planning options. As a TEP with STEP, I was happy to see STEP as an industry leader referenced several times in Sharon’s book with references to several STEP checklists and writings to help global advisors.
Sharon even talks about the use of tech language, and its eventual standardization, and the different terms used to describe digital assets, including digital property, virtual assets, digital files, intangible assets, intangible personal property, technological assets, paperless assets, cyber assets, crypto assets etc. and so on.

In a year of electronic court filings, changing on-line systems and technology, virtual business meetings, virtual signings and taking instructions virtually, it is likely impossible now not to avoid these rapid changes. Sharon speaks of a new role in the estate world -that of the technical advisor- Sharon describes herself as a career IT management practitioner. In order to enter the estate industry, she started with the STEP Diploma program.

The importance of a fiduciary in managing and administering an estate has traditionally been the paper-trails, but paper-trails will become less likely to exist in a digital world. Sharon mentions The Uniform Law Conference of Canada, the Uniform Access to Digital Assets by Fiduciaries Act (2016) (entered into force June) which defines digital assets and sets a framework for fiduciary access to and management of digital assets. Apparently, only Saskatchewan has thus far, been the only province to enact it.

Sharon flags the staggering numbers in unclaimed assets from accounts, insurances, tax refunds and so on. She talks about the conundrum of future trickier technology to navigate, for instance in the use of biometric passwords including retinol scans or fingerprints. Sharon delves into the implication of taxable attributes, privacy issues, cybercrime, identity theft, keeping technology and software current. To the estate planner-the importance of learning and understanding a client’s digital asset base is becoming more critical even in simple planning discovery items such as email and how it is used, access, what about loyalty points, an estate inventory, memorializations, digital vaults, obituary surfing and beyond

Sharon provides guidance for Fiduciaries:

  • Create a list of the digital assets they find;
  • Evaluate how to secure them;
  • Review the Will;
  • Review any other supporting documents;
  • Review the licensing agreements;
  • Research digital assets providers for guidance or cautionary statements;
  • Determine which digital assets provide digital access to an underlying asset (e.g., bank account), which the fiduciary;
  • Should not have accessed online;
  • Determine if the value needs to be assessed;
  • Determine if other expertise is required;
  • Find any tax information; and,
  • Detail any proposed actions for accessing, securing, transferring, or disposing of assets
 
I recommend this eye opening, anxiety causing read to you-you can’t avoid these digital estates anymore!

Another related read was my recent discovery of Ian Hull, Suzana Popovic-Montag, and Nick Esterbauer’s Article in the ETPJ, Planning Considerations For Digital Assets: Vol. 38 No. 3 of the Estates Trusts & Pensions Journal.

Believe me estate colleagues- you MUST read these works and get digital current!
V. UPCOMING PROGRAMS
TPL & CanAge Educational Speakers Series – POA Advisory Committee
Power of Attorney 101
May 27, 2021
Speaker: Kimberly Whaley
 
OBA
Innovation in Estates and Trust Law
June 1, 2021
Speaker: Kimberly Whaley
 
Elder Abuse Prevention (ON)
POA Abuse Webinar
June 9, 2021
Speaker: Kimberly Whaley

Law Society of Ontario, 15th Solo and Small Firm Conference
The Solo/Small Advantage
June 10, 2021
Chair: Kimberly Whaley
 
Estate Planning and Litigation Virtual Mini Forum
New Developments in Case Law
June 16, 2021
Speaker: Kimberly Whaley
 
Ontario Police
Elder Abuse Investigations 2021
June 16, 2021
Speakers: Daniel Paperny and Matthew Rendely
 
OBA Elder Law Day
Covid-19 Impacts on Elder Abuse
June 21, 2021
Speaker: Kimberly Whaley

OBA Elder Law Day
What’s really Going on Inside Long-Term Care and Retirement Homes 
June 21, 2021
Moderator: Matthew Rendely
 
OBA Elder Law Day
Your Elder Law Case Law Round-up
June 21, 2021
Speaker: Bryan Gilmartin     
 
Toronto Police
Elder Abuse Investigator’s Course
Civil & Criminal Remedies
September 3, 2021
Speakers: Matthew Rendely and Bryan Gilmartin
 
International Federation of Ageing – 15th Global Conference on Ageing November 9-12, 2021
Speakers: Daniel Paperny and Matthew Rendely
                                               
Ontario Police
Elder Abuse Investigations 2021
November 16, 2021
Speakers: Bryan Gilmartin and Paul Murphy  
 
LESA 53rd Annual Refresher: Managing Wills & Estates Matters
DATE: TBD
Decisional Capacity: A Wills & Estates Context
Speaker: Kimberly Whaley and John Poyser

Estate Planning and Litigation Forum
Spring 2022
VI. WEL FEATURE SERIES
VII. IN CASE YOU MISSED IT - RECENT BLOG POSTS
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WEL NEWSLETTER May 2021, Vol. 11, No. 2