Hello,
During March we celebrated International Women’s Day. WEL sent out a message on social media to women everywhere to share in the celebration of women and in our mutual goal of a gender equal world. We hold hope for a world free of bias, stereotype, and discrimination. The world will benefit infinitely from a diverse and inclusive landscape where value is celebrated in equality.
At this time of celebration, we are also learning each day of the devastating impacts of war on the human rights of individuals far and wide. My thoughts are with all people, their families, relatives, and friends who are currently withstanding unbearable suffering because of the deplorable destruction of war. I hope for the cessation of hostilities and violence.
We must engage our own responsibilities towards others and demonstrate through our actions that our common values supersede the divisiveness that comes from war.
Now, on an up-note to balance the difficult with the good, one of my favourite green celebrations is also here-enjoy St. Patrick’s Day! Do something this year that you could not do last year- that is, if you can- perhaps celebrate at one of your favourite local spots and embrace your community.
It’s also March break for those with children, and those with none. In speaking with my colleagues, many have now taken a holiday, a flight, had a chance to put their feet in some sand, travelled-well done! For those of you, who have not, it’s time to start thinking about a reward for all your perseverance, dedication, and gruelling hours.
It is important for all of us humans to take a break, have some rest, switch off, enjoy and be grateful. Perhaps this is more important than ever given the consequences of the pandemic on our work-life expectations. I have noticed a decline in patience, tolerance, and professionalism out there in the world generally. I get it, but we mustn’t let this happen. Take a break- you will benefit from it.
Until next month, Happy March and,
Enjoy the read,
Kim
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1. OSGOODE LAW SCHOOL ELDER LAW COURSE, FEBRUARY 16, 2022
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Nimali Gamage invited Kim to do a lecture on Predatory Marriages for her Osgoode Law School Elder Law Course. It was a fun afternoon with some keen and clever students! Thank You for the invitation Nimali. |
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2. CANADIAN LAWYER, FEBRUARY 24, 2022 |
Daniel Paperny was interviewed by Aidan Macnab of the Canadian Lawyer on February 22, 2022. The article, “It’s always better to act sooner rather than later” can be found at:
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3. CBA ELDER LAW SECTION, MEDICAL ASSISTANCE IN DYING |
Please see submission on Medical Assistance in Dying that was sent to the Minister of Justice and the Minister of Health by The Canadian Bar Association.
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4. THE CANADIAN BAR ASSOCIATION: “ASSESSING INCAPACITY IN A DIGITAL WORLD” – TAKING INSTRUCTIONS FROM YOUR CLIENT |
John Poyser and Bryan Gilmartin will be presenting at this event on April 7, 2022.
This program will focus on new remote execution rules across the provinces, assessing undue influence, and reviewing incapacity requirements.
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5. ONTARIO DELIVERING DIGITAL ACCESS TO COURTS |
For more information, please check the link below:
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6. LEXPERT RANKED LAWYERS 2022 |
Kimberly Whaley and Albert Oosterhoff are pleased to be recognized again as Lexpert Ranked Lawyers for 2022.
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7. KIMBERLY WHALEY JOINS ESTATE PLANNING COUNCIL OF CANADA
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Kimberly Whaley is pleased to be welcomed as a new member of the Estate Planning Council of Canada.
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8. WEL PARTNERS ON ELDER LAW NOW AVAILABLE AS AN E-BOOK |
Our previously published resource book on Elder Law is now available in e-book format.
This publication addresses the well-known topics of capacity, undue influence, powers of attorney, and guardianship, the book also addresses discrimination against older persons, predatory marriages, and other topics. Prominent among the topics discussed is elder abuse in its various forms, including financial and physical abuse, civil and criminal law remedies to counter abuse, and protection of the elderly. As well, case law in areas such as predatory marriages, another form of elder abuse, have made it important to describe the vulnerability of the elders in such cases and others and to give guidance on how to prevent such abuses and predations. The book also covers end of life decisions and professionalism and ethics in dealing with vulnerable clients.
The book concludes with a number of appendices that contain helpful checklists on elder abuse, undue influence, and capacity, as well as a summary of capacity criteria.
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APPOINTMENT TO THE COUNCIL OF THE COLLEGE OF TRADITIONAL CHINESE PRACTITIONERS AND ACUPUNCTURISTS OF ONTARIO |
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WEL congratulates Mark Handelman on his appointment to the Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario. Mark’s experience and contribution to the College will be a tremendous asset. |
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WEL congratulates Amelia Yiu on receiving her TEP designation with STEP Canada.
STEP administers the Trust and Estate Practitioner (TEP) designation, an internationally recognized hallmark of professional expertise in the area of trusts and estates. The TEP designation formally distinguishes qualified practitioners from non-specialists, while offering a competitive advantage to develop clientele during this exceptional age of inter-generational wealth transfer. A TEP stands out from the competition, ensuring clients they are in the right hands when it matters most.
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(i) BAYFORD v BOESE ENCORE |
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By Albert H. Oosterhoff
Last year I wrote two blogs on this case. The first was on the decision of the Ontario Court of Appeal,[1] which reversed the decision of S. Corthorn J at trial.[2] The second was on the Court of Appeal’s cost endorsement.[3]
In summary, the testator, Bruce Boese, had his lawyer prepare a draft will naming his long-time friend, Brenda Bayford, as his executor and sole beneficiary. She had helped him operate his farm for the last two decades of his life. Brenda could not locate the executed and witnessed will but brought an action to prove the will in solemn form. She produced two Versions of the draft will, both photocopies. Version 1 contained only Bruce’s signature and no signatures of witnesses. Version 2 contained Bruce’s signature and the signatures of two witnesses. Bruce’s brother, Brian, who stood to inherit half of Bruce’s estate if he died intestate opposed Brenda’s claim that Version 2 was Bruce’s will and should be admitted to probate. He claimed that the witnesses’ signatures had been added to Version 2 after Bruce died. Brenda never produced the original of Version 1, and a handwriting expert testified that Versions 1 and 2 contained copies of the same signature that was said to be Bruce’s, which is impossible. Corthorn J accepted Brenda’s evidence and held that Version 2 had been validly executed.
The Court of Appeal allowed the appeal on the ground that Corthorn J had fallen into palpable and overriding error, because she misunderstood Brian’s position and the importance of the expert evidence and made a number of other errors. In the costs decision the Court of Appeal held that Brian was not entitled to full indemnity costs on the appeal because, although a court can award such costs when a party has engaged in reprehensible, scandalous, or outrageous conduct, this principle normally applies only to trial proceedings and there was no such conduct on the appeal. However, the court awarded Brian costs on a substantial indemnity basis because he had the heavy burden of establishing that the trial judge made a palpable and overriding error. The court endorsed the parties’ agreement that Brian was entitled to his costs at trial and that the assessment of those costs should be referred to the trial judge. That assessment is the focus of this blog.
In the assessment proceedings,[4] Brian sought costs on a full indemnity basis, because in presenting her case as she did, Brenda in essence attempted to perpetrate a fraud on the court by knowingly misleading the court at trial about the documents she submitted.
In the 2019 costs endorsement, Corthorn J had been critical of Brenda’s lack of diligence in carrying out the oral and documentary discovery process, and that she failed to manage the relevant documents responsibly. Accordingly, she held that the costs to which Brenda was entitled from the estate should be reduced by 50%. Her Honour concluded that, on its own, this type of conduct did not rise to the level of conduct that would make an award of costs on a full indemnity basis appropriate. However, she went on to state:
27 Taking into consideration the plaintiff’s evidence at trial and the decision of the Court of Appeal for Ontario, I find that the plaintiff attempted to perpetrate a fraud on the Estate, on the beneficiaries under the existing valid will and on the court. The plaintiff did so in two capacities — as the putative estate trustee and as a litigant. She involved two other individuals in that attempt — the two individuals whose names and signatures appear on Version 2 as witnesses to the Testator’s signature and who gave evidence at trial.
28 I find that the litigation was caused entirely by the plaintiff’s conduct. Taking into consideration that finding and the findings previously made about the plaintiff’s litigation conduct, I conclude that the plaintiff engaged in the type of egregious and reprehensible conduct that warrants sanction in the form of an award of costs on a full indemnity basis. Consequences of this kind, for the type of behaviour in which the plaintiff engaged, serve as a deterrent to prevent others from engaging in similar conduct.
Accordingly, she held that Brian was entitled to his trial costs on a full indemnity basis. She then assessed the costs claimed by Brian by reference to the factors listed in r. 57.01(1) of the Rules of Civil Procedure and found them to be reasonable. Further, she applied the Court of Appeal’s order in its costs endorsement that, to the extent Brian cannot recover his trial costs from Brenda, he can recover them from the estate.
The assessments of the costs on the appeal and at trial will be welcomed by the bar, I’m sure, because they clarify when full indemnity costs may be awarded.
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[1] 2021 ONCA 442. See https://welpartners.com/blog/2021/08/o-what-a-tangled-web-we-weave-bayford-v-boese/.
[2] 2019 ONSC 5663, 50 ETR 4th 204, followed by a costs endorsement at 2019 ONSC 6919.
[3] 2021 ONCA 533, 69 ETR 4th 216. See https://welpartners.com/blog/2021/12/costs-in-estate-litigation-on-a-finding-of-fraud/.
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(ii) EXECUTOR’S COMPENSATION AND PASSING OF ACCOUNTS
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By Albert Oosterhoff
The recent decision, In the Estate of Olga G Suboch,[1] is yet another case in which one beneficiary raised objections to the accounts submitted by the executor and the amount of compensation claimed by him in circumstances in which the objections were minor and mostly unsubstantiated. The decision is unexceptional, but it is instructive in that it outlines the factors that the court considers in such a case.
The testator, a widow, died in 2015, survived by her three children, Andrew, Katherine, and Janine. By her will, she appointed Andrew as her executor. She made lump sum payments to grandchildren and nephews (which amounts have already been paid) and split the residue equally between the three children. The assets consisted of the testator’s home, bank and investment accounts, jewelry, and other personal objects, and a 100% interest in Kajaan Investments Ltd. The latter was a holding company that held a 50% interest in SHOD Investments Ltd. SHOD was also a holding company that owned two valuable real properties, a small strip mall and a small apartment building. The strip mall was sold in 2018 and the apartment building was sold in 2020. The funds were distributed between Kajaan and SHOD’s other 50% shareholder, the testator’s brother, Don. The total value of the estate at the testator’s death was about $8 million and is now worth about $10 million. The only remaining assets in the estate are cash and the shares in Kajaan.
Andrew brought this application to pass the accounts. Janine raised several issues about the accounts and about the amount claimed by Andrew for compensation. She had also brought an application to remove Andrew as executor in 2019, but it was never argued and was not pursued.
Justice Penny found that Janine’s concerns about the accounts were partly just technical points that had no impact on the amounts reflected in the accounts. Other complaints concerned small amounts that hardly justified the time and expense of bringing the application. With one exception (to be mentioned below), the financial impact of the objections was less than $15,000 and the executor had already agreed to reduce his compensation by more than that amount.
Justice Penny accepted that there may have been some technical errors in the presentation of the accounts, but noted that this was a large, complex estate, the administration of which extended over five years. Importantly, his Honour stated:
9. … Sometimes, perfection is the enemy of the good. I am not prepared to reject the accounts on the basis of minor, technical errors, largely because the cost and delay that would result from making such an order would far outweigh any discernible benefit.
10 An estate trustee is not required to meet a standard of perfection; rather, the standard of care of an estate trustee with respect to maintaining accounts is the standard of a person using ordinary care and diligence in managing their own affairs.[2]
Moreover, he noted that Andrew had to account over several years, his mother did not keep electronic records, and his accounting fell in the middle of a world-wide epidemic. To the extent that he could not provide vouchers, he or Katherine provided an explanation or documents to justify the amount of the expense charged to the estate. As his Honour stated, any items that cannot be explained are de minimus [sic, minimis].[3]
The one exception mentioned about was the compensation Andrew paid to Katherine for her management of Kajaan’s indirect interest in the real properties co-owned by Kajaan, through SHOD, with Don. That amount was approximately $66,000. She managed the properties from the date of the testator’s death in 2015 until they were sold, respectively, in 2018 and 2020. Katherine was the President, Secretary, and Treasurer of Kajaan and had been paid for management and oversight of the properties for many years to a time before the testator’s death. Moreover, the liquidation of Kajaan’s indirect interest in the properties was a lengthy process, in part because Don did not cooperate with the estate and Andrew had to sue him eventually so that the properties could be sold. In the meantime, the properties had to be managed and Katherine was the right person to do that. His Honour found that in the circumstances the amount paid to her was not unreasonable.
Similarly, his Honour refused to reduce Andrew’s compensation by the amount of the management fee paid to Katherine.
Janine argued that Andrew failed to administer the estate with an even hand to her disadvantage. She argued that this was sufficient to have him removed as executor and was equally sufficient to deny him any compensation. Justice Penny held that these arguments lacked any basis. Janine received the same interim distributions as her siblings and the fact that she had to leave her mother’s house so that Andrew could realize the assets promptly, did not constitute treating her with an uneven hand. Indeed, the estate offered to pay her rent for her own accommodation.
His Honour then determined the amount of Andrew’s compensation by applying, as expected, the ‘tariff’ of 2.5%,[4] and the five factors approach listed in Laing Estate v. Laing Estate,[5] which derives from Toronto General Trust Corp v Central Ontario Railway.[6] Taking into account that the value of the estate was close to $10 million, that the executor did most of the work himself and spent more than 500 hours administering the state, that the value of the estate increased during his administration, and that he made substantial interim disbursements, his Honour found that the reduced amount claimed by Andrew, $267,859.96 was fair and reasonable compensation.
His Honour also awarded Andrew partial indemnity costs of $20,000 (all inclusive) for the application to remove him, to be paid by Janine out of her next distribution. He also awarded Andrew partial indemnity costs of $35,000 (all inclusive) for the passing of accounts application, also payable by Janine out of her next distribution.
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[2] Toller James Montague Cranston (Estate of), 2021 ONSC 1347.
[3] De minimis is an oft-used abbreviation of the Latin expression, de minimis non curat lex, which is usually translated as ‘the law does not concern itself with trifles’.
[4] Otherwise known as the percentages approach, described in Re Farmer’s Loan and Savings Co. (1904), 3 OWR 835 at 839, 1904 CarswellOnt 462 (HC). It was restated and applied by Killeen Surr Ct J in Re Jeffery Estate, 1990 CarswellOnt 503, para 13, 39 ETR 173.
[5] 1998 CarswellOnt 4037, sub nom. Laing Estate v Hines 25 ETR 2d 139 (CA).
[6] (1905), 6 OWR 350, 1905 CarswellOnt 449 (HC). In Laing, the Court of Appeal held that to calculate an executor’s compensation, you begin with the percentages approach and then check the result against the five factors approach. To the same effect, see Re Gordon Estate, 1998 CarswellOnt 2207, 24 ETR 2d 308 (CA); and Re Flaska Estate, 1998 CarswellOnt 4059 (CA).
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Malvern Seniors Active Living Fair
March 24, 2022
Powers of Attorney
Speaker: Bryan Gilmartin
Law Society - 19th Real Estate Law Summit
April 6, 2022
Use of Powers of Attorney in Real Estate Transactions
Co-Speakers: Kimberly Whaley and Larry Enfield
Osgoode Certificate in Elder Law
Predatory Marriages
April 7, 2022
Speakers: Kimberly Whaley and Albert Oosterhoff
CBA Elder Law Section
April 7, 2022
Assessing Incapacity in a Digital World
Speaker: Bryan Gilmartin
Estate Planning and Litigation Forum
April 10 – 12, 2022
New Developments in Case Law – panel discussion Kimberly Whaley, Peter Glowacki, John Poyser, Craig Vander Zee, and Deidre Herbert; and, a Potpourri of issues including Mediation and Rights of Incapable an Capable individuals with Jasmine Sweatman, Craig Vander Zee and Anita Southall
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
The Osgoode Intensive Program in Wills & Estates
Osgoode Hall Professional Development
April 19, 2022
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
LESA 53rd Annual Refresher: Managing Wills & Estates Matters
April 30 – May 2, 2022
Capacity Tests fir Different Legal Tasks; and Capacity Assessment (panel discussion)
Speaker: Kimberly Whaley
LESA 53rd Annual Refresher: Managing Wills & Estates Matters
April 30 – May 2, 2022
Keynote speech
Speaker: Albert Oosterhoff
Canadian Lawyer Webinar
Latest Update on Estate Claims
May 18, 2022
Speakers: Kimberly Whaley and Ian Hull
The International Academy of Estate and Trust Law (TIAETL)
May 22-26, 2022
2022 Annual Meeting, Washington, DC
LSO 6-Minute Estate Lawyer
May 25, 2022
Proving Due Execution
Co-Chairs: Ian Hull and Andrea Hill
Speaker: Kimberly Whaley
OSGOODE ESTATE LITIGATION
October 6, 2022
Locating Missing Beneficiaries
Speaker: Albert Oosterhoff
OSGOODE ESTATE LITIGATION
October 6, 2022
Costs in Estate Litigation
Speaker: Bryan Gilmartin
STEP Global Congress, London UK
July 7-8, 2022
Predatory Behaviours and the Vulnerable Client: A Quiet Welfare Disaster?
Moderator: L Louise Lewis< TEP, Freeths LLP, UK
Speakers: Kimberly Whaley and Daniel Holloway, University of Oxford, UK
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Check out our recent Feature Series which are posted on our Blog:
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VI. IN CASE YOU MISSED IT - RECENT BLOG POSTS |
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