The Dead Files

Does a Responsibility  to pay support survive the death of the support Payor?

Barrie M. Hayes, Partner

Part 4 of the Succession  Law Reform Act ("SLRA")  answers this question in the affirmative.

The SLRA provides that in the event that a person dies, with or without a will, in circumstances where the deceased has not made adequate provision for the support of a dependent,  the dependent may initiate a proceeding against the estate for an adequate provision for support.  The legislation  does not contain a definition of what constitutes  an adequate provision.

Persons entitled to claim this relief are all those who, at the time of the deceased's death, the deceased had an obligation to pay support for.

A dependent can be a spouse, married or common law (cohabiting  for at least three years or in a relationship  of some permanence from which a child or children were born), a same sex partner, a parent, a child or a sibling. 

The claim for support must be made within 6 months from the date of the issuance of aCertificate of Appointment  of Estate Trustee, with or without a will.

The legislation requires the issue of support entitlement  to be dealt with on a two-step basis: 

1. The court must determine that the deceased did not make adequate provision for the proper support of the dependent.
2. The court must determine what amount of support is adequate in the circumstances.

The legislation  sets out a number of factors that the court should consider in determining the issue of dependency. 

The main difference in calculating the amount of support between a claim for support when the support payor is living vs. support under the SCLRA is, in calculating support  where the support payor is living the support payor's income from all sources is the consideration  examined.  The amount of support under the SCLRA is based the value of the assets of the deceased's estate.

The income and assets of the dependent claiming support are also examined  in considering the adequateness  of support.  The court has broad discretion in arranging for the provision of support. The court can fix an amount of support and suspend the distribution  of assets in order that the estate assets continue to generate income for support purposes. The court can set aside certain assets to be held in trust for the benefit of the support claimant for so long as he or she lives. The court can transfer title to a portion or all of the estate assets.

The legislation, in determining  the extent of the deceased's estate for the purpose of payment of support directs that assets which would not normally fall into the deceased's estate (ie: life insurance, joint property with right of survivorship,  gifts mortis causa (death bed gifts)) form part of the deceased's estate in determining the amount of support.

By Tracey Rynard, Associate

Many times I have been contacted by children or friends of elderly people in a panic. “The doctor says my (mother/father/favourite aunt/uncle/friend) is incapable. They don’t have a will, what do I do now????”

Since they have already called a lawyer, we can skip directly to Step Two, stop panicking.

What the doctor means when he says someone is incapable is not the same thing as being incapable to make a will. In fact, since capacity is decision, time and situation-specific, capacity itself is difficult to pin down. There is no such thing as being globally “capable”. There is no test to determine one’s general capacity.

There are as many different tests for capacity as you can derive a reason for testing for capacity, including: capacity to manage property, to make personal care decisions, to make a power of attorney for property or health care and to revoke one or the other, capacity to contract, to gift, to make a  will, to revoke a will to create a trust,  the capacity to marry, to separate and to divorce. Each test is different.

As an aside, the test of capacity to marry has a lower standard than the test for capacity to make a will but marriage revokes prior wills therefore a gentleman ( such cases seem to involve a disproportionately high percentage of men) potentially could find themselves married and intestate.

Some capacity tests are governed by legislation (the Substitute Decisions Act) and some are governed by the common law. Another issue with capacity is that it can vary. A client may be incapable of making a will on Tuesday morning but fully capable of doing so on Wednesday night.

A doctor or other health care practitioner may assess whether or not a patient is capable of consenting to health, however, the test for capacity to make a will should be completed by a lawyer trained in that area of law. If there is some doubt a certified capacity assessor may be consulted (another topic for another day).

The test which a doctor may use on to determine capacity is the Mini Mental State Examination, the fourth question of which is “can you spell WORLD backwards?” (the title hopefully makes sense to you now).  Although the MMSE, as it is known, is a useful screening tool for detecting potential cognitive issues, the assessment of actual decisional capacity of the will client is the responsibility of the lawyer consulted.

By John Cockburn, Partner

 Question:        Is it possible to make a new Will, prior to my getting married, that would survive my new marriage?

 Answer:          A Will is automatically revoked by marriage, except if, in that Will, you specifically declared that it is made in *contemplation* of the marriage, (i.e., names your bride to be), or if your new spouse elects to take under the Will, by documents signed and filed within one year of your death at the Office of the Registrar, the Will will survive to that extent.

Of course the odds are that if you made the Will long before your marriage, you may not have named your current spouse as the beneficiary of the major portion of your Estate and therefore, would probably have an intestate situation.

By Alf Dick, Honest Alf – the Little Guy Lawyer 

(First in a series of 4 blog posts)

I once told a friend that he needed a Will and he said: “What’s a Will”? I thought: “Oh, oh – let’s go back to the beginning”. 

Simply put, a Will is a document in writing but it is kind of special because it deals with a special situation, namely, the death of the author. Because the author is no longer around when the Will is activated – ok, did I forget to tell you that a Will is dormant and not operative until the author (known as the Testator or, for the ladies reading this, the Testatrix) dies? – the law has some interesting technical requirements before a Will becomes “legal” and in force. 

First of all, it has to be signed by the Testator but only in a certain way and in a certain place. With very few exceptions (which I will talk about later), a Will requires at least two witnesses to be there, both at the same time, to watch the Testator sign – that’s the “certain way” – and all of the witnesses must sign at the end of the Will – that’s the “certain  place”.  And those witnesses must sign the Will in the presence of the Testator. 

It gets better. If the Will has more than one page, each page should be initialed by all three of them (usually it’s three although it could be more if you want) and any changes (for example a strike out of any word) in the body of the Will must be initialed by those same three people. As a result, if,  on the death of the Testator, a Will is produced for him and it contains changes that were not properly initialed, that change will be ignored. So, don’t mess with a properly signed Will. 

And who can be a witness? Just about anybody over 18 years of age can be a witness but if the witness or the witness’s spouse is also a beneficiary (receiver of a gift) under the Will, the gift to that person fails. What’s the moral of the story? Don’t try to sign a Will on your own – see a lawyer!

 By Barrie M. Hayes, Partner 

 Continuing Powers of Attorney for Property are one of the documents frequently executed in estate planning practices.

The majority of Continuing Powers of Attorney for Property have no restriction in the authority given to the Attorney for the management of the grantor's property. As such, the Attorney, when acting pursuant to an unrestricted Power of Attorney for Property, can administer the grantor's property in virtually any fashion (i.e.: open and close bank accounts/maintain and sell house or vehicle/pay bills/collect debts/deal with investments).

The only limitation in authority is that the Attorney cannot make a will on behalf of the grantor.

With this broad legal authority, however, comes several legal obligations and responsibilities for the Attorney. In administering the grantor's property, the Attorney must act in relation to the said property as a fiduciary, whose powers and duties shall be performed diligently, competently, with honesty and integrity and in good faith for the grantor's benefit.

Decisions made in relation to the grantor's property must consider the grantor's personal comfort and wellbeing.

An Attorney who does not receive monetary compensation for managing the grantor's property must exercise a degree of care, diligence and skill that a personal of ordinary prudence would exercise in the conduct of his or her own affairs.

An Attorney who, however, receives monetary compensation for managing the said property must exercise a degree of care, diligence and skill that a person in the business of managing the property of others is required to exercise.

An Attorney can be liable at law for damages resulting as a breach of his or her duties.

The Attorney can be required to provide a financial accounting for the period of time the Attorney has administered the grantor's property. The Attorney will be required, at law, to keep accurate accounts and to present the accounts in a specific, detailed format. The accounts must clearly show how all the monies or assets received have been disbursed.

By Tracey Rynard, Associate

It often seems that talking about preparing a  will to most people ranks somewhere between  getting a tooth pulled and medieval torture. Personally, I don’t talk “shop” in my spare time as generally only other estate planning professionals care to chat socially about the legal implications of death and dying.  Come to think of it, I don’t often mention my career choice to new acquaintances at first as it usually immediately spawns the inevitable, “have you heard this one? [insert lame lawyer joke]” to which the answer, if you know any lawyers, is always yes, we have heard every lawyer joke. There are no new lawyer jokes. Trust  me.

 In my personal experience, it is unfortunate how many otherwise organized and responsible people choose to put off estate planning until it is too late.  My suspicions were confirmed in a recent survey reported in the Epoch Time: Majority of Canadians Do Not Have a Signed Will, Survey Shows.  56% of Canadians surveyed reported having no will  (even worse, 71% reported not having any powers of attorney established but I will leave that topic for another post). The top reasons for not completing estate planning? Believing they were still “too young,” not knowing how to get started, or viewing the process as too expensive.

 I know this will be difficult to accept (coming from a lawyer and all) but please do not draft your own will. An experienced estate planning practitioner is worth their fee. They will not only assist you in avoiding mistakes but will discuss with you issues which you may not even consider on your own. For example: 

• a will is revoked by marriage, or;
• if you die without  a will your spouse does not automatically inherit your entire estate, or;
• an RESP will be dissolved on the death of the subscriber and the grant money must be returned, or;
• a minor’s gift will be paid to the Ontario government, in trust, until the minor is 18.

For many reasons, preparing a last will and testament is a great example of an instance when you don’t want to be “penny-wise, pound foolish.”

 Groucho Marx’s famous last words  were  “Die, my dear? Why, that’s the last thing I’ll do!”

Unfortunately for him and for all of us alive today, death is the inevitable consequence of living.

Be prepared!

Kathryn Whitehead, Associate

Welcome to The Dead Files – a friendly forum for the living (since it is already too late if you are deceased) to discover the truths surrounding estate planning, estate administration and estate litigation!

The Dead Files is a group collaboration of the Wills & Estates practitioners at Barriston LLP.  The authors of The Dead Files like to think of ourselves as an intelligent, knowledgeable, and laughable group of individuals who live life to the fullest and enjoy helping others.   Members of the blog consist of (in alphabetical order): John Cockburn, George Corn, Jennifer Craddock-Jones, George Craig, Alfred Dick, Barrie Hayes, Tracey Rynard, and myself, Kathryn Whitehead.   

Our goal is to share practical and useful information that will help explain the mysteries and hidden forces in the Wills and Estates legal arenas.  We will explore and investigate, in a broad sense, such areas as: Primary, Corporate, and International Wills; Trusts, such as Spousal, Family and Henson; Powers of Attorney for Property and Personal Care; Certificates of Appointment for Estate Trustees with and without a Will; Estate Trustee duties and liabilities; Passing of Estate Accounts; Will Challenges; and Dependent’s Relief claims.

We hope you will enjoy The Dead Files and discover strategies to help combat the veiled powers that may impede estate planning efforts.