Hello,
Firstly, to all of you celebrating, fasting, or holidaying this month-best wishes and enjoy your festivities, memories, and experiences.
On that note - since this month’s newsletter releases on Easter - Happy Easter and enjoy the bunny and the chocolate! May your friends and families be safe.
This month I want to celebrate the achievements of two of my colleagues, Albert, and Ian.
We congratulate Albert who has been named as the LSO recipient of the highly regarded top honor in Ontario, the Law Society Medal. Each year, the Law Society of Ontario awards the Law Society Medal to selected lawyers who have made a significant contribution to the profession. This award is given for outstanding service within the profession, whether in the area of practice, in the academic sphere, or in some other professional capacity where the service is in accordance with the highest ideals of the legal profession. It may be awarded for devotion to professional duties over a long term or for a single outstanding act of service. The criteria found here: https://lso.ca/about-lso/medals,-awards-and-honours/law-society-awards/the-law-society-medal
Bryan and I were conducting some reconnaissance and learned that even in the past 12 months, Albert has been mentioned in more than 27 court decisions across Canada including decisions at all levels of court. Many of these decisions fall outside of the estates and trusts realm, but rather in the areas of bankruptcy, property proceedings and other commercial matters.
There is no doubt in my mind that Albert has touched the professional and personal lives of infinite individuals through his academic works. Not only is Albert an outstanding scholar, but he is a kind, generous, gentleman that I am so pleased to call my good and appreciated friend.
Albert Oosterhoff (Professor Emeritus, University of Western Ontario) authors Oosterhoff on Wills and Succession, and Oosterhoff on Trusts, two seminal textbooks on the law of estates and trusts.
Professor Oosterhoff’s scholarly writing has been cited by courts throughout Canada at least 300 times, including over 80 times in various Canadian courts of appeal, and at least 20 times by the Supreme Court of Canada.
Now turning to Ian Hull, Ian has been named to receive the Trusts & Estates Award in Excellence from the OBA. This award is presented to lawyers who are recognized for their exceptional contributions and/or achievements by members of the OBA in the area of wills, trusts and estates. The recipient of this award must demonstrate leadership in the trusts and estates bar through knowledge, experience, skill, commitment, passion and strength of character, plus all or some of the following:
- Academic excellence through teaching at the Bar Admission Course, lecturing at a law school, participation in continuing legal education and/or academic writing.
- Participation in OBA Trusts and Estates Section Executive or the Law Society of Ontario on wills, trust and estates matters.
- Contribution as counsel or as a judge to the development of wills, trusts and estates law, and wills, trusts and estates legislative framework.
Ian joined his father Rodney and together they forged the most recognized Estates & Trusts boutique in Canada. Ian is always at the forefront of new developments and initiatives and gives time, resources, insight, and financial backing to many initiatives that benefit our bar.
Ian Hull is one of Canada’s leading estate litigators. He has successfully represented clients at every level of court, including the Supreme Court of Canada. He was the Toronto Lawyers Association Honsberger Award Winner in 2018 and received the Ontario Bar Association award for distinguished service in 2020.
His work has been recognized internationally at the highest levels. He is a fellow of the American College of Trial Lawyers, an invitation only fellowship of exceptional trial lawyers of diverse backgrounds from the United States and Canada.
Ian was also recently inducted into the Canadian Academy of Distinguished Neutrals, whose members are amongst the most respected civil, commercial Alternative Dispute Resolution professionals across Canada.
I know that both Albert and Ian can be very proud of their many achievements and contributions - I want to thank each, for all they do and for enriching my life and others’ around us.
Many Congratulations Albert & Ian!
Until next time, Enjoy the Read,
Kim
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1. CANAGE MALVERN SENIORS ACTIVE LIVING FAIR, MARCH 24, 2022 |
Bryan Gilmartin presented at the CanAge Virtual Seniors Active Living Fair, on “Powers of Attorney” which was hosted by Malvern Family Resource Centre. Bryan led a discussion about the types of power of attorney documents, the requirements for them to be valid, and some things to consider when choosing an attorney for property and personal care. |
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2. LSO, 19th REAL ESTATE LAW SUMMIT, APRIL 6, 2022 |
Kimberly Whaley and Larry Enfield presented on: “Use of Powers of Attorney in Real Estate Transactions”, at the LSO 19th Real Estate Law Summit on April 6, 2022.
A copy of Kimberly & Larry’s materials:
Use of Powers of Attorney in Real Estate Transactions
Validity of a Continuing Power of Attorney for Property (“CPOAP”) Pursuant to the SDA Checklist
Misuses and Abuses Under a Continuing Power of Attorney for Property (“CPOAP”) Annotated Checklist
Capacity to Grant/Revoke a Continuing Power of Attorney for Property (“CPOAP”) Checklist
Financial Abuse Under a Continuing Power of Attorney for Property (“CPOAP”) Checklist
Case Scenario
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3. OSGOODE CERTIFICATE IN ELDER LAW, APRIL 7, 2022 |
Kimberly Whaley and Albert Oosterhoff presented on: “Predatory Marriages”, at the Osgoode Certificate in Elder Law.
Their paper and charts can be found at:
Paper: Predatory Marriages
Chart: Capacity to Marry in Canada: Cross-Provincial Examination of Marriage Legislation
Chart: Cross Provincial Revocation of Will Legislation
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4. CBA ELDER LAW, APRIL 7, 2022
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John Poyser and Bryan Gilmartin presented on: “Assessing Incapacity in a Digital World” – Taking Instructions from Your Client, at the CBA Elder Law program on April 7, 2022.
A copy of John Poyser’s materials can be accessed by program registrants at:
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5. ESTATE PLANNING AND LITIGATION FORUM, APRIL 10-12, 2022
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Kimberly Whaley led the panel discussion on: “New Developments in Case Law”, at the Estate Planning and Litigation Forum, with panelists, Peter Glowacki, John Poyser, Craig Vander Zee, and Deidre Herbert.
Kimberly Whaley was also on the panel discussion: “A Potpourri of Issues including Mediation and Rights of Incapable and Capable Individuals”, with Jasmine Sweatman, Craig Vander Zee, and Anita Southall.
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6. CSD ESTATES PROCEDURE MANUAL, UPDATED APRIL 4, 2022 |
The Estates Procedures Manual was updated as at April 6, 2022. If you would like to receive a copy of the updated manual, please send a request to: [email protected]
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7. GUIDELINES TO E-DIRECTIONS IN CIVIL PROCEDURES, APRIL 19, 2022
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You can access the Guidelines to e-direction in Civil procedures which will take effect April 19, 2022.
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Toronto Estates to have its own Dedicated List from September 2022.
The newly constituted list will be led by the Hon. J. Dietrich and include the Hon. J. Gilmore and 2 other members of the bench. The list will hear all estate matters including trials.
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WEL congratulates Professor Albert Oosterhoff on receiving the well-deserved Law Society Medal Award for 2022.
Professor Albert Oosterhoff (Professor Emeritus, University of Western Ontario, Professor at Windsor and Toronto Law Schools) is renowned as a leading legal scholar and author in the area of trusts and estates in Canada. His publication record spans 50 years and his work is regularly cited by the courts, academics, lawyers, students and policy-makers both nationally and internationally.
The award is given for outstanding service within the profession, whether in the area of practice, in the academic sphere, or in some other professional capacity where the service is in accordance with the highest ideals of the legal profession. It may be awarded for devotion to professional duties over a long term or for a single outstanding act of service
WEL also congratulates the other recipients of the 2022 award - Beth Beattie, Christopher Bredt, Brian Gover, Lorin MacDonald, Deepa Mattoo and Stuart Wuttke.
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OBA AWARD OF EXCELLENCE IN TRUSTS AND ESTATES LAW |
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WEL congratulates Ian Hull, on being the recipient of the 2022 OBA Award of Excellence in Trusts and Estates Law. The Award for Excellence in Trusts and Estates was created to recognize exceptional contributions and/or achievements by members of the Ontario Bar Association (OBA) to the area of wills, trusts and estates.
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DIGITAL ASSET ENTANGLEMENT: UNRAVELING THE INTERSECTION OF ESTATE LAWS & TECHNOLOGY |
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LexisNexis publication, by Sharon Hartung and Jennifer L. Zegel, Esq.
I was not surprised therefore, when last month another gift arrived. Sharon has been keeping us all digitally minded for the last several years. The recent publication is the most in-depth, guide yet, to estate planning and the digital world. This current publication is co-written with Jennifer L. Zegel, a lawyer and partner, at Kleinbard LLC’s.
The example of Canadian CEO Gerald Cotten of QuadrigaCX, who was the founder of Canada’s largest crypto-currency exchange and the succession of the issues related to his death in 2018 has been well publicized. The authors’ collaborated, they say as a result of a simple Google error which created a dialogue communication and development as between these two in respect of their work in this publication. The Quadriga case was foundational to assist the readers in the understanding of the complexity of digital assets estate planning.
The authors’ report on the investigative chronology revealing the Quadriga lack of business processes and the issues associated with allegations of fraud and activities within the company, and the findings and recoveries in respect of Gerald Cotten’s actions that contributed to the company’s downfall. The book also details the findings of the investigations and the reports on the fraudulent activities, the creation of fake assets and operating a Ponzi scheme using client money to conduct speculative crypto assets.
This in addition to the difficulty that investigators found whether assisted by court orders and actions or otherwise, in investigating the online assets of Gerald Cotton in respect of his estate, and similarly of Quadriga.
The importance of the investigative reports demonstrate the level of government oversight in regulation which was absent and which is obviously required. The authors were careful to note that Quadriga’s failings were not necessarily representative of the broad crypto-currency market, nor, block chain, but rather in the emergence of technology required for transactional security record keeping and data.
The authors addressed the orientation of legalities of digital assets including usual online tools used like Google, Apple, Twitter, LinkedIn, and report in detail about legislation which is being drafted and considered with respect to the management and access of digital assets, as well as privacy laws and fiduciary access law.
The authors also particularized the digital asset case analysis framework, and the implications for the advisor using client personas.
The book is fascinating, replete with draft clauses for planning purposes, a review of property laws, intellectual property, and the intersection of technology.
The authors think about and share a construct for the discovery of a client’s digital assets portfolio for the purposes of a consensual framework to identify types and characteristics of digital assets, and technology behaviors, as well as to assist in the planning of the digital footprint.
Of notable inclusion, was the review of Gerald Cotten’s Will, and the clauses in the Will which authorize the fiduciary to access, handle, distribute and dispose of electronic and digital assets, and powers associated with the access, modification, deletion, and control of passwords. It appears that digital planning did play a factor, although obstacles were still met. The authors point out that regardless of jurisdiction, a fiduciary’s ability to access digital assets and digital assets clauses differ jurisdictionally. So too, does any digital access legislation and privacy laws. Increasingly, individual user account contracts are now including fiduciary access procedures. This is not uniform, nor is it present in every user contract.
I also liked the sub-section: UNCOVERING THE NEW FRONTIER OF DIGITAL ASSETS IN THE ESTATE INDUSTRY. This section although reflecting on the Quadriga bankruptcy, also focuses on the advisor and the fiduciary with helpful information in identifying useful characteristics of digital assets and how to consider them in the planning context.
This book is a deep dive into what is the future of digital assets from an estate perspective, and I highly recommend that you give it a read.
Link to purchase:
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(i) HOW DO YOU BECOME A TRUSTEE? |
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By Albert H. Oosterhoff
The above question was the central issue in Greenlight Solutions Corp v Baker.[1] In it the court considered whether the defendant lawyer impliedly accepted a trust. This is not an issue that arises every day but is clearly an important one. The court also considered whether a lawyer’s professional obligations may assist in determining whether a lawyer is liable in such circumstances.
Of course, in most cases you only become a trustee if you accept the office. And you cannot be compelled to accept it. Abrioux JA, who delivered the judgment of the Court of Appeal, explained why this is so in the following words, and it is useful to be reminded of these basic principles:
32 Reduced to its essentials, a trust is a legal relationship wherein a trustee holds and administers property for the benefit of beneficiaries or objects of the trust. Its hallmark is the trustee’s fiduciary duty toward the beneficiaries or objects. This duty carries important responsibilities, including abiding by the terms of the trust; acting honestly and with skill and prudence; and not personally profiting from dealings with trust property or the beneficiaries. Falling short of these responsibilities may expose trustees to personal liability, not merely for losses that were foreseeable or caused by their own delicts, but for any missing property that, but for the breach, ought to have been in the trust. Liability is therefore strict and, potentially, severe. A finding that one is a trustee can result in significant legal consequences.[2]
33 The law therefore does not lightly bestow the title of trustee. In express trusts, trustees — whether actual or constructive — cannot be appointed by others unilaterally. As the authors explain in Mark R. Gillen, D.W.M. Waters, Lionel D. Smith, Waters’ Law of Trusts in Canada:[3]
No person can be compelled to accept the office of trustee. In the great majority of cases, therefore, whether the trust is contained in a will, any other instrument, or in an oral declaration, the settlor will seek the consent of the would-be trustee before appointment . . .
No such consent was obtained in this case, but the plaintiff argued that the defendant was nonetheless a trustee. These are the salient facts.
In 2019 Innasmat Lynx Inc. (‘Lynx’) agreed to lend Green Light Solutions Corp. (‘Green Light’) 3 million USD. The agreement required Green Light topay a 30,000 USD deposit to Lynx’s lawyer, the appellant Gordon Baker ‘in trust’, subject to certain conditions. It the conditions were met the amount would be applied toward insurance costs. If they were not met, the amount would be refunded. The conditions were not met, and Green Light demanded a refund of the moneys. Lynx did not refund them. Green Light then sued Lynx, as well as Baker for breach of trust. Lynx failed to defend and default judgment was entered against it. It failed to pay the judgment. In 2020, Green Light and Baker brought competing applications for summary judgment. The application judge found that the circumstances of the case made Baker into a trustee for Green Light and granted Green Light’s application.[4] Baker appealed.
Baker was not involved in any way with the negotiations for or the drafting of the loan agreement and was not initially aware of it until he was told by an officer of Lynx that he would be receiving funds from Green Light into its trust account. Baker made no inquiries about the moneys, except to ask ‘whether there was any hold on the funds’. He was told that there was not. The funds were deposited into his trust account. Then he received instructions from Lynx to transfer the moneys into two Lynx accounts. Green Light did not give any instructions to Baker or demand any undertakings from him when it wired the funds to him. The wire transfer also did not indicate that the funds were being paid in trust.
The basis of Green Light’s claim was breach of trust. It did not allege that Baker owed it a duty of care under the principle of a lawyer’s duty to a non-client.
Abrioux JA noted that there were potentially three ways in Baker could have been held liable as a trustee: (1) his implied acceptance to become a trustee; (2) becoming trustee de son tort; or (3) ‘knowing assistance’ in a third party’s breach of trust. The ‘knowing receipt’ approach was unavailable since Baker never received the moneys for his own benefit.
His Honour noted that the first way, implied acceptance, may arise based on the defendant’s conduct (a) if he deals with trust property for reasons that cannot clearly be linked to any other purpose; (b) if he exercises any act of ownership over the property; or (c) if he actively interferes in the affairs of the trust.
The second way, trustee de son tort, arises when the defendant, though never appointed as trustee, acts as if he has been and purports to administer the trust property for the benefit of the beneficiaries.[5] In that case the law will treat him as a trustee. In other words, he is a constructive trustee.
The third way, knowing assistance, arises when the defendant knowingly assists trustees who engage in a dishonest or fraudulent act. Someone who knowingly assists a trustee in committing a dishonest or fraudulent act is not a trustee, and the remedy for knowing assistance is normally personal, either in the form of compensation, or by disgorgement of the participant’s gain. However, a proprietary remedy is possible in appropriate cases.[6]
His Honour disposed of the second and third ways summarily. With respect to the second, Baker did not become a trustee de son tort because he never purported to act as trustee for Green Light. With respect to the third way, there was no factual basis on which Baker could be found liable for knowing assistance.
His Honour discussed the first way, implied acceptance, in detail. To that end he considered Royal Bank of Canada v Fogler Rubinoff.[7] In that case the law firm received funds from the Royal Bank on behalf of a client who was negotiating a share purchase agreement. The firm suggested that, as a gesture of good will, the client deposit $180,000 into its trust account to be applied to the purchase price if the agreement was concluded. The bank issued the draft ‘in trust’ and the client explained the nature of the draft to the firm. During the negotiations, a dispute arose between the firm and the client, and, over the client’s objections, the firm disbursed $100,000 from its trust account to pay its legal fees and paid the remainder to the client. The bank sued the firm for breach of trust. The Court of Appeal held that the firm was aware of the trust in favour of the bank. Therefore, if it was unsure about the terms of the trust, it had a legal duty to make inquiries of the bank. It did not do so but since it had constructive notice of the trust, it breached the trust by disbursing the moneys in a way that was inconsistent with the trust.
Abrioux JA distinguished Fogler Rubinoff, because Baker was unaware of the trust, having been initially unaware of the loan agreement that created a trust. All he did was receive the funds into his trust account and then disburse them in accordance with his client’s instructions. He acted as agent for his client. The mere fact that the funds were deposited into his trust account was insufficient to impute knowledge to him that the funds were impressed with a trust.
His Honour noted that the question whether Baker had professional obligations to make further inquiries when he received the funds was not a necessary element to the claim. But he made an important point in this connection. In his opinion, breach by a party of his professional obligations may assist the court’s analysis in determining whether the party is liable. However, inquiries required by professional standards cannot, by themselves, serve to impute knowledge of a trust, for that would in effect result in the unilateral appointment of trustees. In support of this view, and because Baker practiced in Ontario, his Honour quoted the commentary to Rule 7.2-11 of the Ontario Rules of Professional Conduct and noted that it shows that professional obligations in a trust context involve mutuality. Clearly, it takes two to create a trust.
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[1]2021 BCCA 287, 71 ETR 4th 1.
[2] Internal citations omitted.
[3] 4th ed. (Toronto: Carswell, 2012) at 883. The identical quotation can be found in the 5th edition (Toronto: Thomson Reuters, 2021) at 934.
[4] Green Light Solutions Corp v Baker 2020 BCSC 1812.
[5] The term ‘trustee de son tort’ is not particularly illuminating. For that reason, Lord Millett once suggested, ‘[s]ubstituting dog Latin for bastard French, we would do better to describe such persons as de facto trustees: Dubai Aluminium Company Ltd v Salaam, [2003] 2 AC 366 (HL) at 403.
[6] See further Oosterhoff on Trusts, 9th ed by Albert H Oosterhoff, Robert Chambers, and Mitchell McInnes (Toronto: Thomson Reuters, 2019), §18.4.6.
[7] (1991) 5 OR 3d 734 (CA).
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(ii) PROBATE, CONSTRUCTION, AND LAW REFORM
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By Albert Oosterhoff
1. Introduction
I have written about the difference between the Superior Courts’ Probate and Construction jurisdictions on several occasions.[1] It is important that we keep the differences distinct, but confusion about them continues to arise. Gordon v Gordon[2] is a recent case in which the differences also came to the fore.
2. Facts
Kenneth Gordon died in 2018, survived by his three children, Karen, Kristopher, and Kevin, and by his four grandchildren, his former spouse, and his girlfriend. He appointed Karen, Kristopher, and another person his executors. He made a Primary Will and a Limited Will on the same day in 2014 and the evidence was that the Primary Will was executed first. The two wills contained standard revocation provisions but provided expressly that neither will revoked the other.
In 2018 the executors brought an application for probate limited to the assets disposed of by the Primary Will. Justice P MacEachern twice dismissed the application[3] and directed the executors to seek a determination from another judge on the question whether it was possible for the court to grant probate limited to the assets referred to in the Primary Will. The reason was that the Primary Will stated: ‘I give all my property’ to the Executors on trust.[4]
Thus, her Honour wanted another judge to construe the Primary Will. Presumably, she did this because she was aware of the different roles of a judge exercising her probate jurisdiction and a judge exercising her construction jurisdiction. She would also have been aware of the caveats expressed by some courts to the effect that the same judge should not normally hear both probate and construction matters together or successively. This is because the evidence admissible at the two stages differs and it would be difficult for the judge in the second stage to disregard evidence heard in the first stage. I refer to such caveats below.[5]
However, there is a problem with addressing the problem in this way. The court does not normally get involved in construing a will until after probate has been granted, for it must construe the will as probated. As the Honourable Maurice Cullity stated in a Comment:[6] ‘… there are two separate stages in will contests: first, to identify the words that constitute the will; and second, to determine what the words mean’. Here the stages are reversed and in effect this puts the cart before the horse.
The Limited Will stated that the two Wills were intended to be complementary to one another and that it disposed only of the assets described in it, which were mainly assets consisting of shares in private corporations. The Limited Will also contained an error. Paragraph 4(c) of that will purported to give one-third of the residue of the Estate to Karen, with a gift over to her issue and a further gift over on failure of issue to Kristopher’s Trust set out in paragraph 8(d)ii. There was no paragraph 8(d)ii in the Will.
In accordance with the direction of Justice MacEachern, the executors brought this application for construction of the Primary Will and the rectification of the Limited Will. It was heard by Corthorn J. There were some issues with the affidavits submitted by the leading executor and by the lawyer in support of the application. In the end they did not affect the outcome, but lawyers are well advised to take note of that part of the reasons and ensure that they follow the rules strictly in drafting affidavits. There was also a problem with the name of the Limited Will; it was called that in some instances but Limited Property Will in others. However, nothing turned on that.
3. Analysis
Justice Corthorn reviewed the law on the use of multiple wills. They are used principally to limit the amount of estate administration tax (‘EAT’) the executors have to pay under the Estates Administration Tax Act.[7] They achieve this result by including only those assets for which probate will be needed in the Primary Will, while including all other assets in the Limited Will.[8] Section 32 of the EATA requires the executors to disclose the value of the estate, but it permits them to disclose only the value of that part of the estate for which probate is sought and to pay the EAT only on that part.
Since the Primary Will gave ‘all my property’ to the Executors on trust, the question obviously arose whether they therefore had to disclose all the assets comprised in both the Primary and Limited Estates. Justice Corthorn resolved the issue in an innovative way. She concluded that the Primary Will did not have to be rectified to say that the testator was giving the Executors all property except the property comprised in the Limited Will.
She reached this conclusion by relying on the uncontradicted evidence that the Primary Will was executed first and the Limited Will second. Then she held that to the extent there was any inconsistency in the terms of the Primary Will and the Limited Will, the latter revoked the former to the extent of the inconsistency. As authority her Honour referred to two cases which considered whether more than one document can constitute a person’s will.[9] The cases in question noted rightly that this is possible, so long as the two documents are not inconsistent.
Such a revocation is called an implied revocation.[10] It arises when the second document does not contain an express revocation clause. Then, if the second document implicitly revokes part of the first document by disposing of the property dealt with in that part in a different way, the two documents together constitute the deceased’s will. However, the first document is revoked impliedly (and only in part) by the second document. Typically, the second document is made some time after the first. The two cases mentioned held that the wills were inconsistent and so the later document constituted the testator’s will.
With great respect, the facts in this case are quite different. Here there are not two documents, an earlier testamentary disposition which disposes of the entire estate and a later one that purports to replace the earlier one in part. Rather, here we have an earlier one that contains a mistake and one immediately following it which states expressly that the Primary Will is not to be revoked by the Limited Will. In other words, the Limited Will does not revoke the Primary Will expressly or impliedly. Thus, in my opinion, this attempt to resolve the problem does not work. I shall discuss whether there is another way to resolve the problem below.
Justice Corthorn then turned to the question whether the Limited Will could be rectified. She concluded without any real discussion that paragraph 4(c) contained a typographical error that should be rectified by changing ‘paragraph 8(d)ii’ to ‘paragraph 4(d)ii’. I shall come back to this as well.
While her Honour dismissed the application for a certificate of appointment, that dismissal was without prejudice to the executors pursuing the earlier application before Justice MacEachern for that purpose.
4. Critique
4.1 Resolution at the Probate Stage
The first question I want to raise is whether Justice MacEachern could have resolved the problems at the probate level. I believe that she could have.
A court of probate must determine that the testator had testamentary capacity, that there was no undue influence, and that the testator had knowledge of the contents of the will and approved them. Clearly, it must also ascertain what the assets are which the executors must administer, and on which EAT must be paid. As Cullity J has made clear, the jurisdiction of a court of probate is inquisitorial in nature, because its obligation is to determine what the last will of the testator is, for only that document is entitled to be probated.[11] For this purpose the court of probate sometimes has to interpret wills, but that power is strictly limited to their probate jurisdiction. If it is alleged that words have been inserted by mistake and should be deleted from the document, the court must interpret the document to ensure that it accords with the testator’s intentions.[12] For this purpose, the court of probate may consider extrinsic evidence, direct evidence of the testator’s intention, and even hearsay evidence.[13] If the court finds that words were indeed inserted by mistake, contrary to the testator’s intention, it can delete those words. However, a court of probate lacks the power to insert words in the will and therefore cannot replace the deleted words with others that the testator intended.
In my opinion, the determination of what ‘all my property’ in the Primary Will meant in the context of that Will and the Limited Will fell squarely within the jurisdiction of the Justice MacEachern at the probate stage. Clearly, the Primary Will contained an error that could be explained and understood by reference to the Limited Will. Even though she was not asked to probate the Limited Will, it was extrinsic evidence that she could consider. She could also consider the evidence that Karen and the lawyer included in their affidavits about the testator’s intentions. As noted above, a court of probate cannot insert new words into a will that were omitted by mistake, but it can delete words that were inserted in error. Thus, Justice MacEachern could have omitted the words ‘all my property’ from the Primary Will. That would render the meaning of the will uncertain, but that is something that could be determined by the court exercising its construction function.[14]
It is true that in Robinson Estate v Robinson[15] Justice Belobaba held that he lacked power to delete a revocation clause from a will because it was inserted by the drafting lawyer who had reviewed the will in its entirety with the testator. Thus, under an old rule,[16] he concluded that the testator was bound by the language of the will and was also bound by language intentionally inserted by the drafter. However, that old rule with its conclusive presumption has largely been rejected in modern cases in England and Canada.[17] Thus, in Re Morris[18] the court deleted an incorrect paragraph number (even though it was inserted by the solicitor, albeit erroneously), and left it to the court of construction thereafter to determine the meaning of the will as rectified. Thus, the old rule would not have prevented Justice MacEachern from deleting the words ‘all my property’.
Similarly, Justice MacEachern had jurisdiction to delete the incorrect paragraph number 8(d)ii from paragraph 4(c) the Limited Will, although she could not substitute the incorrect number with the correct one. It would then be left up the court of construction to determine what paragraph 4(c) of the probated will means. Although Justice MacEachern was not asked to probate the Limited Will, she would have jurisdiction over the Limited Will in other respects and could therefore delete the incorrect section number.[19]
4.2 Relevance of the Robinson Case
In her reasons Justice Corthorn relied on the Robinson case mentioned above. However, the reference to that case is problematic for two reasons. First, she notes that as a court of equity the court has jurisdiction to rectify a will. As the Honourable Maurice Cullity pointed out in his comment,[20] the Court of Appeal in that case assumed erroneously that Justice Belobaba at first instance was sitting as a court of construction when in fact he was exercising his probate jurisdiction. Justice Corthorn stated (at para 36), ‘As a court of equity, this court has jurisdiction to rectify a will …’ The Superior Court of Justice is indeed a court of equity (as well as a court of common law).[21] But that does not mean that it has power to rectify wills when exercising its construction function. As I explained in a recent blog[22] Superior Courts have always taken the view that they cannot use their power to rectify wills when they construe them, because doing so would mean that they would be making a will for the testator and that would be contrary to the statutory formalities for wills. However, in the course of interpreting wills, a Superior Court does have the power of ‘correcting errors and omissions by implication’[23] if: (a) it is satisfied that the will contains an inaccurate expression by the testator of her intentions; and (b) if it is clear from the will itself what words the testator had in mind when she made the error in the will or omitted words from the will.[24]
The second reason why the reliance on the Robinson case is problematic is that, in para 36 her Honour quotes from the decision at first instance of that case to list the ‘three situations in which the court has jurisdiction to rectify a will and thereby correct unintended errors’. However, those three situations apply to the court’s probate jurisdiction, not its construction jurisdiction.
While her Honour’s ‘rectification’ of the Limited Will was undoubtedly possible under the court’s power of ‘correcting errors and omissions by implication’, it was not a ‘rectification’ in the commonly understood sense of that word, that is, the equitable power to rectify inter vivos documents.
4.3 Sequential Resolution by the Same Judge
If my previous solutions to resolving the problems in this case are thought inapt, there may possibly be another way to address the problem that arose in this case. This would require the same judge to consider whether to grant probate and to interpret the will at the construction level. This is highly unusual because, as noted above, the kinds of evidence admissible in probate and in construction are different. As noted above, this would present an awkward problem for the judge. Having heard a wide range of evidence in the exercise of her probate jurisdiction, she would then, when she engaged in the construction exercise, have to disregard much of that evidence. That would be difficult for anyone and that was undoubtedly one reason why Justice MacEachern wanted another judge to interpret the will.
In Re Ali Estate[25] Dardi J opined that for these reasons, normally the judge exercising her probate jurisdiction should not then construe the will. In his Comment, the Honourable Maurice Cullity expressed the same caution.[26] However, Justice Dardi acknowledged that there may be exceptional situations in which the same judge can consider both matters in succession. She referred to Prouse v. Scheuerman[27] in which this happened. The testator filled out a Canadian Forces will inexpertly. In the bequest section he inserted the name of his friend, Mrs Scheuerman, and in the residue section that followed it he inserted the word ‘NIL’. The probate judge, Hardinge J, granted probate of the will and then went on to determine what the will meant. In other words, he then exercised the court’s construction jurisdiction and concluded that the testator intended to give his entire estate to his friend. In the course of his judgment, he quoted the following statement of Lord Esher MR in Re Harrison; Turner v Hellard:[28]
There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce – that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule.
The Court of Appeal affirmed and endorsed the procedure used at first instance. In para 19, Southin JA noted that the crucial question was whether the will was dispositive, since the testator did not say in the bequest section what he wanted to give. To make it dispositive, one has to read words into it that describe the property. Then in a trenchant statement typical of her Honour, she said in para 18:
If one starts with the proposition that Mr. Moiny, when he went to the trouble of signing this instrument, was not engaging in a piece of devilry intended to cause consternation and litigation, one is driven to the conclusion that he must have intended it to have a legal consequence. The only legal consequence which makes sense is that he intended Mrs. Scheuerman to have his estate.
In Conner Estate v Worthing,[29] Wilson J was dealing with a similar fact situation and followed the Moiny case.
Since the two Gordon wills were so inextricably intertwined and were meant to be read harmoniously and complementary to each other, this is therefore another possible approach to resolving the problem in this case. Thus, Justice MacEachern could have probated the will, construed it, and then, using Justice Southin’s language, that the testator ‘was not engaging in a piece of devilry intended to cause consternation and litigation’ she would have to conclude that the phrase ‘all my property’ was clearly an error and should be read as ‘all the property comprised in this my Primary Will’. The same reasons would apply to correcting the error in clause 4(c) in the Limited Will.
5. Law Reform
The problems posed by the Gordon Wills and the attempts to resolve them highlight the need for law reform to address such problems. The difficulties are two-fold: (1) the evidence admissible at the probate and at the construction stages is very different; and (b) the powers to correct errors and omissions at the two stages are very different. This can only be changed by legislation. I addressed such legislation in the blog I referred to above.[30] In it I recommend that Ontario should adopt legislation like that in force in Alberta and British Columbia. This would give the court exercising its probate jurisdiction wide powers to interpret a will for the purpose of probate and wide powers to rectify the will at probate, and it would give similar powers to the court exercising its construction jurisdiction.
But there is more to be said. Many problems of the kind encountered in the Gordon Wills arise in multiple wills cases. Such cases are much litigated because they have often been poorly drafted or poorly proofread. Multiple wills came into vogue to avoid the high taxes Ontario imposed under EATA and were endorsed in Granovsky Estate v Ontario.[31] If the province were to revoke EATA, which raises a relatively small amount of taxes and is a source of annoyance and for frustration for testators and those who administer estates, the reason for multiple wills will become effete and testators and their legal advisors will stop using them. That would remove a great burden from the courts and the administration of estates. It is true that multiple wills may still be used occasionally, for example, for assets in different jurisdictions or to deal with different kinds of assets, such as property generally and intellectual property. But as the Robinson case illustrates, they often cause problems and those could be avoided by dealing with the entire estate in one will in which the drafter can address assets in different jurisdictions or assets of different kinds and can even appoint different executors to administer discrete assets.
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[1] See, e.g., Albert H Oosterhoff, ‘The Discrete Functions of Courts of Probate and Construction’ (2017), 46 Adv Q 316; Oosterhoff on Trusts, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), chapter 8 and §§16.6 and 13.7.
[3] On 26 March 2019 and 15 July 2019.
[6] Maurice Cullity, ‘Rectification of Wills – A Comment on the Robinson Case’ (2012) ETPJ 127, p 141.
[7] SO 1998, c. 34 (‘EATA’).
[8] The wills typically also include an allocation clause that gives the executors power to move assets from one to the other if it turns out later that probate is or is not required for specific assets.
[9] Re Fitzsimmons Estate, [1939] 2 DLR 50 (NSSC); Niziol v Allen, 2011 ONSC 7457.
[10] See Re Davies, [1928] Ch 24, which discusses the effect of such a revocation as distinct from an express revocation. The case holds that it arises not when the two wills are inconsistent but when it can be deduced from the testator’s language (which falls short of an express statement of revocation) that he intended to revoke the previous will or part of it.
[11] Otis v Otis (2004), 7 ETR 3d 221, 2004 CarswellOnt 1643 (SCJ), para 23.
[12] Cullity, Comment, footnote 6, supra, at 132.
[14] See, e.g., Re Morris; Lloyd’s Bank v Peake, [1971] P 63, [1970] 1 All ER 1057 (PD), in which the court of probate did just that.
[15]2010 ONSC 3484 (SCJ, affirmed 2011 ONCA 493.
[16] Guardhouse v Blackburn (1866), LR 1 P & D 109 (Prob Ct).
[17] See, e.g., Re Morris, footnote 14, supra; Re Reynette-James, [1976] 2 WLR 161 (PD); Re Phelan, [1972] Fam 33 (PDA).
[19] See, e.g., Re Silver Estate (1999), 31 ETR 2d 256 (Ont SCJ), application by executors of unprobated will to pass estate accounts; Carmichael v Carmichael Estate (2000), 184 DLR 4th 171 (Ont SCJ), court has jurisdiction to remove executors who had taken preliminary steps to administer the estate but had not obtained probate. And see also McLaughlin Estate v McLaughlin, 2016 ONCA 899, judge determined secondary will was valid, although it was not probated.
[20] Footnote 6, supra. at p 131.
[21] Courts of Justice Act, RSO 1990, c C.43, s 11(2).
[22]‘Validating Powers and Rectification Powers’, https://welpartners.com/blog/2022/03/validating-powers-and-rectification-powers/, §4.
[23] See Law Reform Commission of British Columbia, Report on Interpretation of Wills (LRC 58, 1982), p. 43.
[25] 2011 BCSC 537, 69 ETR 3d 203, paras 44-47.
[26] Cullity, Comment, footnote 6, supra, p 142.
[27] 2001 BCCA 100, 37 ETR 2d 313, often referred to as Moiny Estate.
[28] (1885), 30 Ch D 390 at 393-94. The reasons at first instance in Moiny are not reported but their substance is reproduced in the appellate reasons.
[29] 2020 BCSC 150, 55 ETR 4th 193, affirmed 2021 BCCA 231. For a comment on the decision at first instance, see my blog, “Formalities, Probate, and Rectification: Conner Estate v. Worthing”. https://welpartners.com/blog/2021/09/formalities-probate-and-rectification-conner-estate-v-worthing/.
[30] Footnote 22, supra. The blog reproduces the Alberta and British Columbia provisions.
[31] 1998 CarswellOnt 518, 21 ETR 2d (Gen Div).
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(iii) FIRST COMES LOVE, THEN COMES MARRIAGE: CAPACITY TO MARRY, SEPARATE AND DIVORCE |
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By Rebecca Betel and Natalie Kodsi
The premise of Netflix’s “Love Is Blind” is simple: gather single strangers looking for love, have them date sight unseen, and then within 30 days of meeting have them marry. Easy. Other than providing hours of entertainment, Love is Blind puts the topic of capacity front and center as it relates to marriage, separation, divorce, and property. What follows is a brief high-level review of the law as it relates to capacity to marry, separate, and divorce.
In Canada, the bar for capacity to marry is low. Essentially, “to enter a marriage… there must be a minimal understanding of the nature of the contract of marriage. No party is required to understand all of the consequences of marriage.”[1] Put another way, “the contract of marriage is a very simple one, one which does not require a high degree of intelligence to comprehend.”[2]
More specifically, in Ontario, for a marriage to be valid it must have “formal validity” and “essential validity”, the former relating to the formalities/procedure of a marriage and the latter relating to requisite capacity to marry.[3] With respect to “essential validity”, section 7 of the Marriage Act [4] prohibits the issuance of a marriage license to, or solemnization of marriage of, any person where reasonable grounds exist to believe that said person lacks the requisite mental capacity to marry by reason of being under the influence of alcohol or drugs, or for any other reason.
Generally, there is a rebuttable presumption that all persons are deemed capable of making decisions at law.[5] Capacity is not static, and a finding of capacity (or incapacity, as the case may be) is premised on an analysis specific to the relevant decision, time, and situation.
With respect to capacity being situation-specific, the Courts are looking for the “cognitive ability to process, retain and understand the relevant information.”[6] The person in question should “be able to apply the relevant information to the circumstances, and be able to weigh the foreseeable risks and benefits of a decision or lack thereof.”[7]
Whether an individual has the capacity to form the intention to leave a marriage hinges on their overall capacity to manage his/her own affairs.[8] Furthermore, in cases where capacity fluctuates, or disappears altogether, courts have held that as long as a person had the requisite capacity at the time of separation from his/her spouse, and maintained the intention to remain separate and apart from his/her spouse while capable, then the entirety of the separation period could be counted for the purposes of a divorce, even if the person lost capacity during the period of separation.[9]
Note that someone may be incapable of managing their property and/or personal care yet remain capable of making personal decisions. With respect to separation, the Ontario Court of Appeal has opined that “[s]eparation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he/she does not want to live.”[10]
The capacity to divorce is the same as the capacity to marry and the court stated, is arguably higher than the threshold for capacity to separate. In Calvert (Litigation Guardian of) v. Calvert [11], the court opined that “[d]ivorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.”[12]
The threshold for capacity to marry, and therefore to divorce, is low. The British Columbia Court of Appeal in Wolfman-Stotland v. Stotland[13] provides that:
In order to enter into a valid marriage, each party must be capable, at the date of the marriage, or understanding the nature of the contract of marriage and the duties and responsibilities which it creates…The test does not, of course, require the parties to be capable of understanding all the consequences of marriage; as one English judge aptly noted, few (if any) could satisfy such a test…the common law test is probably only concerned with the legal consequences and responsibilities which form an essential part of the concept of marriage. Thus, if the parties are capable of understanding that the relationship is legally monogamous, indeterminable except by death or divorce, and involved mutual support and cohabitation, capacity is present.[14]
Distilled to its simplest form, if someone has capacity to contract, they have capacity to marry, separate, and divorce. They do not need to understand the property rights associated with marriage, or the financial implications of matrimony. In short, you could meet someone on a tv show, know them for 30 days, never see their face, and get married—which makes for great TV and, for those of us dealing with capacity issues as a part of our legal practices, for great discussions.
The above is echoed and affirmed by the Ontario Court of Appeal in the recent decision Tanti v. Tanti [15].
In the case of Tanti v. Tanti, the Ontario Superior Court of Justice and later the Ontario Court of Appeal were tasked with determining, among other things, whether Paul Tanti could enter into a marriage with Sharon Joseph, his much younger live-in companion. The pair, who met at a community organization in 2014, developed a relationship which eventually saw them referring to each other as “companions” and living together. By 2019, at 89 years of age, Paul had asked Sharon to marry him. Although initially apprehensive, so as to not anger Paul’s son from a previous union, Raymond, Sharon agreed and the couple wed in July of 2019. A few days later, the couple attended at a lawyer’s office and Paul granted a power of attorney in favour of Sharon.
Raymond was displeased with their union and alleged his father’s marriage to Sharon was invalid on the basis that his father did not have the requisite capacity to marry. Just a year prior, Raymond had taken Paul to a gerontologist who found some moderate cognitive impairment, however, noted no concern as to Paul’s ability to live independently with assistance. In September of 2019, however, Raymond returned Paul before the gerontologist who found Paul’s cognitive reasoning to be impaired. A second doctor confirmed Paul lacked capacity to appoint an attorney. A third confirmed Paul’s lack of capacity to manage his property, stating Paul also likely did not have capacity to marry.
At trial, citing the case of Hunt v. Worrod[16], the Court found that Raymond had the burden of satisfying the judge that Paul lacked capacity to marry, which he ultimately failed to do. Instructing herself on the relevant law relating to a person’s capacity to marry, the trial judge had this to say:
In determining legal capacity, courts are asked to balance individual autonomy against the vulnerability that can come with age or disability: Hunt at para. 10. The overarching goal is to ensure that people retain decisional autonomy in as many domains as possible, even if they must be protected from harm in others: Kimberly Whaley et al., Capacity to Marry, (Aurora: Cartwright Group, 2010), at p. 101. Indeed, people with mild cognitive impairment, dementia or Alzheimer's disease can be capable decision-makers depending on the situation…
The determination of legal capacity is fluid: it is decision, time, and situation specific: Hunt, at para. 13. Medical-legal capacity is a social construct that requires the trier of fact to take into account factors that go beyond simple medical assessments of capacity: Whaley, at p.99.
The requirements of legal capacity vary significantly as between different areas of law and must be applied to the specific decision, act or transaction at issue. For example, it is generally agreed that the capacity required to marry is lower than the capacity required to execute a will or grant a power of attorney for property or personal care: Whaley, at pp. 45-46.
The test for capacity to marry is a simple one. The parties must understand the nature of the marriage contract, and the duties and responsibilities that flow from it: Chertkow v. Feinstein, 1929 CanLII 513 (AB CA), 1929 CarswellAlta 23, 24 Alta LR 188, at p. 191. Understanding the content of the marriage contract does not require a high degree of intelligence; the parties must agree to live together and love one another to the exclusion of all others: Lacey v. Lacey (Public Trustee of), [1983] B.C.J. No. 1016 (S.C.).
The court in Ross-Scott v. Potvin, 2014 BCSC 435 at para. 200 noted that the inability to manage one's financial affairs would "not necessarily impact a person's ability to consciously consider the importance of a marriage contract. Nor do they necessarily impact formation of an intention to marry, a decision to marry, or the ability to proceed through a marriage ceremony." A person may be capable of marrying despite having been declared mentally incompetent or having had a guardian for person or property: Whaley, at p. 45.
The Court of Appeal for Ontario in Knox v. Burton (2004), 6 E.T.R. (3d) 285, aff'd 14 E.T.R. (3d) 27 noted that the assessment of capacity must be time specific: Costantino v. Costantino, 2016 ONSC 7279 at para. 53. Expert examinations or assessments that do not state when the incapacity occurred, or are not contemporaneous with the giving of instructions, may be less probative than the evidence of the individual who took the person's instructions at the time: Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 (Ont. S.C.), at para. 4.
Finally, capacity is situation specific: Hunt, at para. 13. I must assess Paul's specific capacity to marry Sharon, which makes the overall context of their relationship relevant.[17]
With respect to capacity to marry, the Court of Appeal concluded that “for a marriage to be valid, the parties must understand the nature of the marriage contract and the duties and responsibilities that flow from it.”[18] Similarly, the thresholds for capacity to contract, generally, are to be able to appreciate the consequences of a decision.[19]
Ultimately, the latest restatement of the law surrounding capacity to marry leaves much to be desired with respect to protecting some of the most vulnerable in our society. If capacity to marry is akin to the mere capacity to contract, then predatory marriages will continue unencumbered by the law. In cases where capacity to marry is front and center, Judges have the opportunity to redirect and refine the law vis-à-vis predatory marriage. Unfortunately, it is not too often the case that this opportunity is acted upon. It has been suggested that the connection between capacity to manage property and capacity to marry ought to raise the bar for capacity to marry above that of capacity to contract.[20] Surely this would curb at least some of the egregious behaviour around predatory marriages.
Ideally, what is needed are immediate and cogent legislated protections surrounding predatory marriages, such as a Predatory Marriages Prevention Act, as contemplated and drafted by Albert H. Oosterhoff, Professor Emeritus. [21] Such an Act would, among other things, provide strengthened statutory definitions of marriage and capacity to marry, enable interested persons (as delineated by the Act) to contest the validity of a predatory marriage and to file a caveat to prevent the issuance of a marriage license and the solemnization of a marriage, and disentitle predatory parties to a marriage from making a claim against the victims’ property whether under a Will, intestacy, or pursuant to an equalizing claim under the Family Law Act. Recently, the Succession Law Reform Act, was amended to provide that marriage no longer automatically revokes a Will in Ontario,[22] addressing one of Professor Albert H. Oosterhoff’s chief concerns within the proposed Act.
Ultimately, capacity is a fluid concept, and one’s ability to marry must be assessed regarding all the relevant circumstances. While the landscape around capacity to marry may alter our discourse surrounding more difficult matters such as predatory marriages,[23] it may also interestingly recontextualize how we view (and binge) the latest trend in reality TV.
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[1] Kim Whaley & Heather Hogan, “Legal Capacity to Marry, Co-Habit, Separate and Divorce and Predatory Marriages”, Canadian Elder Law Conference, November 13, 2015 (Vancouver, BC).
[2] Durham v Durham (1885), 10 P.D. 80 at 82.
[3] See Anthony v Anthony, 2019 ONSC 650 at paras 15-32.
[5] Palahnuk v Palahnuk Estate, [2006] O.J. No. 5304 (QL), 154 A.C.W.S. (3d) 996 (S.C.J.); Brillinger v Brillinger-Cain, [2007] O.J. No. 2451 (QL), 158 A.C.W.S. (3d) 482 (S.C.J.); Knox v. Burton (2004), 6 E.T.R. (3d) 285, 130 A.C.W.S. (ed) 216 (Ont. S.C.J.).
[6] Per Major J. in Starson v Swayze, Starson v. Swayze, [2003] 1 S.C.R. 722 at para 78 [emphasis added]
[8] See A.B. v. C.D. (2009), BCCA 200 (CanLII), leave to appeal to S.C.C. denied October 22, 2009, [2009] 9 W.W.R. 82, p. 272.
[9] O. (M.K.) (Litigation Guardian of) v C. (M.E.) 2005 CarswellBC 1690 (B.C.S.C.) at para 40.
[10] Calvert (Litigation Guardian of) v Calvert (1997), 32 O.R. (3d) 281 (Div. Ct), at 294, aff’d (1998), 37 O.R. (3d) 221 (CA), leave to appeal ef’d [1998] SCCA No. 16.
[13] 2011 CarswellBC 803, 2011 BCCA 175, [2011] B.C.W.L.D. 3528, [2011] W.D.F.L. 2593, 16 B.C.L.R. (5th) 290, 333 D.L.R. (4th) 106, 97 R.F.L. (6th) 124, 303 B.C.A.C. 201, 512 W.A.C. 201.
[14] Ibid, citing Professor Robertson’s Mental Disability and the Law in Canada pages 253-254 [emphasis added].
[15] 2021 ONCA 717, affirming Tanti v Tanti et al, 2020 ONSC 8063 [Tanti v. Tanti].
[16] Hunt v Worrod, 2017 ONSC 7397 at para 13.
[17] Tanti v Tanti (ONSC) at paras 40-46.
[18] Supra note 15 at para 21.
[19] Royal Trust Co v Diamant, [1953] (3d) DLR. 102 (BCSC); Bank of Nova Scotia v Kelley, (1973), 41 DLR (3d) 273 (PEI SC).
[20] See Cullity J.’s discussion in Banton v Banton 1998 CanLII 14926 (ON SC) at paras 145-159.
[21] See Albert H. Oosterhoff, “Curbing the Scourge of Predatory Marriages by Legislation”. http://welpartners.com/blog/2019/11/curbing-the-scourge-of-predatory-marriages-by-legislation/
[22] See Accelerating Access to Justice Act, 2021, Schedule 9, SO 2021, c 4 – Bill 245.
[23] See Kimberly A. Whaley and Albert H Oosterhoff on Predatory Marriages: https://welpartners.com/resources/WEL-Advocates-Quarterly-Predatory-Marriages.pdf
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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
Incapacity Planning and Powers of Attorney
Speaker: Bryan Gilmartin
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
Managing Wills & Estate Matters; Capacity Assessment (panel discussion); and Potpourri (panel discussion)
Chair: John Poyser
Capacity Tests for Different Legal Tasks; and Capacity Assessment (panel discussion)
Speaker: Kimberly Whaley
Keynote Speech
Speaker: Albert Oosterhoff
Canadian Lawyer Webinar
May 18, 2022
Latest Update on Estate Claims
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
OBA ELDER LAW DAY
June 20, 2022
Predatory Marriages
Chair: Matthew Rendely
Speaker: Kimberly Whaley
STEP Global Congress, London UK
July 7-8, 2022
Predatory Marriages
Speakers: Kimberly Whaley, Louise Lewis and Daniel Holloway
OSGOODE ESTATE LITIGATION
October 6, 2022
Locating Missing Beneficiaries
Speaker: Albert Oosterhoff
Costs in Estate Litigation
Speaker: Bryan Gilmartin
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VII. IN CASE YOU MISSED IT - RECENT BLOG POSTS |
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