Category: Wills and Estates

In an effort to modernize estate law practice, several amendments to Ontario’s inheritance laws have recently been implemented. These changes were largely prompted by the enactment of the Accelerating Access to Justice Act, 2021, which introduced significant amendments to the Succession Law Reform Act (“SLRA”), the legislation governing inheritance matters in Ontario.

Traditionally, under intestacy rules, if a married couple lived separately and one died without a will, leaving behind only a spouse, the spouse would inherit the deceased’s property outright. However, if the deceased left a spouse and one child, the spouse’s entitlement would be half of the estate remaining after the payment of the spousal preferential share, currently set at $350,000. In cases with multiple children, the spouse would still receive their preferential share, with the remaining estate divided between the spouse and the deceased’s children.

However, on January 1, 2022, an amendment to section 43.1 of the SLRA introduced significant changes regarding separated spouses in intestacy matters. This amendment not only exempts separated spouses from intestacy rules but also provides a comprehensive definition of what constitutes a “separated” spouse. The aim is to bring clarity and fairness to estate distribution in situations where marital relationships have broken down.

Who qualifies as a “spouse” under the SLRA?

Under the SLRA, “spouse” has the same meaning as in section 1 of the Family Law Act (“FLA”).

Section 1 of the FLA defines “spouse” as two persons who:

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.

According to section 43.1 of the SLRA, a spouse is considered “separated” from the deceased person at the time of their death if:

(a) Before the person’s death,

i. they lived separate and apart as a result of the breakdown of their marriage for a period of three years, if the period immediately preceded the death,

ii. they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,

iii. a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or

iv. a family arbitration award was made under the Arbitration Act, 1991with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and

(b) at the time of the person’s death, they were living separate and apart as a result of the breakdown of their marriage.

It’s essential to note the difference between common-law spouses and married spouses regarding property rights. Unlike married spouses, common-law partners do not have the same legal treatment and do not automatically possess equivalent property rights.

By providing clarity on the treatment of separated spouses in intestacy cases and defining the term “separated” spouse, the amendment aims to promote fairness and equity in estate distribution practices. However, it also underscores the ongoing need for individuals to be aware of their legal rights and obligations, particularly in the realm of family law and estate planning.

The experienced legal team at Devry Smith Frank LLP is here to assist you in navigating the intricacies of Ontario’s legal landscape. For more information regarding Estates and Estates-related topics, please contact Kelli Preston at Devry Smith Frank LLP at (416) 446-3344 or kelli.preston@devrylaw.ca.

This post was co-authored by Kelli Preston and Articling Student, Owais Hashmi.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

As you embark on a new year filled with possibilities, consider prioritizing resolutions that ensure lasting financial security and peace of mind for you and your loved ones. Take these proactive steps in wealth and estate planning to safeguard your legacy and make certain that your wishes are honoured:

Make or update your Will

Assets: Provide a comprehensive inventory of your assets, including real estate, investments, and personal property.

Beneficiaries: Clearly outline who will inherit your assets, specifying individuals or groups of individuals.

Guardians: For parents of minor children, appoint guardians who will provide care and support in your absence.

Executorship: Choose a reliable executor to oversee the distribution of your assets in accordance with your wishes.

Funeral Wishes: Communicate your preferences for funeral arrangements, alleviating the burden on your loved ones during a challenging time.

Charitable Donations: If philanthropy is close to your heart, include provisions for charitable donations in your will.

Powers of Attorney

POA for Personal Care: Appoint an individual responsible for making determinations regarding your healthcare, nutrition, living arrangements, clothing, hygiene, and safety in the event you lack the capacity to make these decisions independently.

POA for Property: Appoint an individual to manage your financial affairs, covering everything from bill payments and managing debt to handling investments and property transactions in the event you lack the capacity to make these decisions independently.

Managing Assets outside of your Will (not included in your Estate)

Life Insurance: Review and update life insurance policies to align with your current financial situation and protect your loved ones. Designate beneficiaries to ensure the life insurance proceeds can be distributed without the need for Probate.

TFSA and RRSPs: Strategically manage Tax-Free Savings Accounts (TFSAs) and Registered Retirement Savings Plans (RRSPs) to maximize tax advantages. Designate beneficiaries to ensure the life insurance proceeds can be distributed without the need for Probate.

Joint Accounts: With a joint bank account comes the right of survivorship. This means that when one of the account owners passes away, the surviving owner will take full ownership of the account. In theory, the bank account will not form part of the deceased’s estate since the surviving owner has full legal title to the account through the right of survivorship.

Joint Tenancy: A joint tenancy creates a right of survivorship, which means that if one party dies, their interest is automatically transferred to the surviving tenant(s).

Digital Assets

Social Media Accounts: Develop a plan for the management or closure of social media accounts, preserving your digital legacy.

Financial Accounts: Safeguard access information for online financial accounts to facilitate a smooth transition for your loved ones.

Cryptocurrency: Provide clear instructions on how to access and manage cryptocurrency holdings, addressing a frequently overlooked aspect of estate planning.

Password Management: Implement secure password practices and communicate access details to trusted individuals.

Business Succession Planning

Sole Proprietorships: If the business is a sole proprietorship, it ceases to operate upon the owner’s death. Develop a comprehensive plan for the seamless transfer of ownership and management responsibilities.

Partnerships: Partnerships may or may not dissolve upon the death of a partner depending on the partnership agreement. Alternatively, a deceased partner’s interest may be transferred to a designated party such as a spouse. It is important to make provisions for transfer of ownership upon the death of a partner to determine whether the business will continue to operate and if so, with whom at its helm.

Corporations and Shareholder Agreements: A Shareholders’ Agreement typically covers crucial business transition matters such as ownership of shares, the transfer or sale of shares, procedures in the event of a shareholder’s death, and the resolution of disputes among shareholders. Ownership of voting and preferred shares for a corporation can become a heavily contested matter if adequate provisions are not made.

Creditor Protection

Transferring Assets inter-vivos: Explore strategies for transferring assets to spouses or children during your lifetime as a gift to avoid complications with Probate.

Bankruptcy Protection: Bankruptcy protections are afforded to certain assets, such as PRDSPs, RRSPs, RRIFs, and DPSPs. Contribution to these plans over an individual’s lifetime can ensure their family and dependants are guaranteed to receive some amount from their estate, especially if beneficiaries are designated from the outset.

Timing Considerations: Be mindful that contributions to the aforementioned assets (as PRDSPs, RRSPs, RRIFs, and DPSPs) and inter-vivos transfers made within 12 months of declaring bankruptcy may not receive the same level of protection.

By taking these proactive steps and deliberate measures, you can be confident that your loved ones will be well-provided for in the future.

The experienced legal team at Devry Smith Frank LLP is here to assist you in navigating the intricacies of Ontario’s legal landscape. For more information regarding Estates and Estates-related topics, please contact Kelli Preston at Devry Smith Frank LLP at (416) 446-3344 or kelli.preston@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Articling Student, Owais Hashmi.

As we described in a previous blog, testators can make two kinds of Wills in Ontario: formal Wills, which are typed, often drafted by a lawyer, signed by the testator, and require two witnesses to attest to the testator’s signature; and Holographic Wills, which are simply handwritten by the testator and signed. Despite the lack of formality surrounding holographic Wills, they are just as legally binding as formal Wills in Ontario: courts have held that holographic Wills can revoke a prior formal Will^[1] and revive a previously revoked formal Will.^[2] Moreover, as holographic Wills don’t require the services of a lawyer, they can be created quickly and at little to no cost. However, there is good reason why holographic Wills are not the preferred testamentary instrument of most Ontarians – this blog will highlight several problems which can arise with holographic Wills and lead to lengthy and costly disputes for your estate and beneficiaries.

(1) Legislative Requirements

While the legislative requirements surrounding holographic Wills are more relaxed than formal Wills, there are still mandatory elements that a holographic Will must have to be valid. Section 6 of the Succession Law Reform Act (SLRA) sets out the basic elements of a holographic Will:

6 A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

First, a holographic Will must be entirely in the deceased’s handwriting. It cannot be partially typed or a “fill-in-the-blanks” document. Testators also cannot use the doctrine of incorporation by reference to incorporate a typed Will into a holographic Will, as the court held in Re: Lacroix Estate.^[3] In Lacroix, the testator was hospitalized with cancer during the COVID-19 pandemic in 2020. Due to restrictions on visitors in the hospital, the testator could not execute the formal Will prepared by her lawyer. Instead, the testator attached the following handwritten document to her draft Will:

Tuesday, May 26, 2020

I, Rebecca Stephanie Lacroix, declare that this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes.

RSLacroix

The court found that this written document satisfied the SLRA requirements for a holographic Will; however, it alone was not a valid testamentary document, as it did not independently dispose of any property.^[4] Moreover, as the draft Will was typed and not handwritten by the testator, it could not form part of a holographic Will.^[5]

Second, a holographic Will must be signed by the testator. Section 7 of the SLRA states that the testator’s signature should be at the end of the Will, whether formal or holographic. In general, any dispositions or instructions underneath the signature, or inserted after the document was signed, will not be effective.^[6]

However, since Ontario’s shift from a strict compliance regime to a substantial compliance regime in January 2022, courts have the discretion to declare a Will valid even if it does not meet all of the legislative requirements. Under section 21.1(1) of the SLRA, if the Superior Court of Justice is satisfied that an improperly executed document sets out the testamentary intentions of a deceased, they can, on application, order that the document is valid and fully effective, as if it had been properly executed. Despite these reforms, section 21.1(2) of the SLRA maintains Ontario’s ban on electronic Wills and codicils, per section 31(1) of the Electronic Commerce Act.

(2) Testamentary Intent and Language

In addition to the legislative requirements in the SLRA, there is also a common law requirement that a holographic Will must contain “a deliberate or fixed and final expression of [the testator’s] intention as to the disposal of property upon death.”^[7]

This intention does not have to be expressed in explicit testamentary language; it can be inferred from the context of the document itself and its contents. For example, the court in Laframboise v Laframboise held that a document was a holographic Will, despite its use of “Informal” in the title of the document, failure to appoint an estate trustee, and failure to use traditional testamentary language. Here, after reading the document as a whole, the court found that the use of “Informal” referred to the fact that the Will was not typed, witnessed, and created with the assistance of a lawyer.^[8]

Similarly, the court has also inferred intention from the surrounding context of the document. In Rezaee (Re), at a dinner party, the testator wrote out and signed the following document:

I, Kamran Rezaee, hereby give all my wealth and property to my close friend Mr. Siamak Naftchi. (signed) Kamran Rezaee, March 20, 2018.

The court found that this was a valid holographic Will and showed testamentary intent, from the context of the testator being diagnosed with terminal cancer and undergoing cancer treatments for a year and a half at the time of writing the document.^[9]

This is not always the case; the court in McKenzie v Hill held that the following handwritten document created by the deceased was not a valid holographic Will:

October 28, 2014

An Agreement to Transfer Property

I Joyce B. Hillman residing at The Red Woods Seniors Retirement (sic) do solemnly states (sic) that I wish to transfer my property at 12 Clarence Street, number 12 unit, Ottawa, Ontario, K1N 5P3 to my Brother Cecil McKenzie to be the sole owner. He can sell it at any time he wishes to do so without any interference by anyone. I have appointed him guardian and to be in full control of my finances. I set my hand this 28^th day of October two thousand & fourteen and sign this agreement.

Signed Joyce B. Hillman

Witness:  Audrey E. Logan

Here, the court could not find any testamentary intention: the document does not refer to the deceased’s death, suggest that the transfer was to be triggered by the deceased’s death, and is titled as an “Agreement”, not a Will.^[10]

As indicated in the cases above, absent clear testamentary language, holographic Wills are left open to challenges from interested parties and interpretation by the courts. Even when the Wills were ultimately upheld, the proceedings to validate the Wills resulted in a significant cost and delay to the administration of the estate.

Moreover, as many holographic Wills are prepared by laypeople without a thorough understanding of the law, issues of uncertainty, ambiguity, and omission may also arise and require judicial intervention. For instance, in Laframboise, the testator failed to appoint an estate trustee. Testators may also fail to account for certain outcomes in their estate, such as if a beneficiary pre-deceases them if there are not enough assets in the estate to cover the bequests, and what happens to the residue, or remainder, of the estate after the specific bequests.

(3) Capacity Challenges

All testators, whether executing a formal or holographic Will, must have testamentary capacity. Hall v Bennett Estate states that a testator must have a “sound disposing mind”, which requires that they:

• understand the nature and effects of a will;
• understand the nature and extent of their property;
• understand what they are disposing of under the will;
• remember the people they are expected to benefit under the will; and
• where applicable, understand the nature of claims that may be made by people they excluded from the will.^[11]

While testamentary capacity is assumed absent evidence to the contrary, problems can arise when the circumstances surrounding the creation of a holographic Will are suspicious or raise questions about the testator’s capacity. In Laframboise, after separating from his wife, the testator prepared a holographic Will, leaving only his wedding ring and wedding pictures to his wife, and then took his own life. His wife challenged the Will on the basis of lack of testamentary capacity. The court rejected this argument. The court found that the testator was depressed, but that there was no evidence that the depression impacted any of the factors laid out in Hall above.^[12] The letters to his wife and family before his death “indicate a full appreciation of what he was about to do and why he felt compelled to do it…[and] indicate a tortured mind, not a deranged mind.”^[13]

Likewise, in McGrath v Joy, after a day of heavy drinking and marijuana use, the testator wrote a suicide note and took his own life. In the note, the testator stated that he did not want his wife to get anything under a previous Will he drafted in 2016, and asked his named estate trustee to make sure that this happened. Here, the Court of Appeal found that the note was a valid holographic Will and that the testator had the requisite capacity, as he met the factors in Hall.^[14] The Court found that the application judge erred in not finding that the testator had capacity by basing their opinion on the testator’s use of drugs and alcohol, and not the legal principles set out in Hall.^[15]

Although the testators in Laframboise and McGrath were ultimately found to have capacity, the circumstances surrounding the creation of the Wills provided a sufficient basis for a Will challenge. Without a drafting lawyer to attest to the testator’s capacity, the courts were also left to determine capacity based on expert evidence and witness testimony, both of which added time and cost to the proceedings.

Conclusions

The ultimate purpose of a Will is to provide you with peace of mind that your beneficiaries and assets will be properly taken care of after your death. While a holographic Will seems like an easy, cheap, and convenient way to do so, particularly with the new substantial compliance regime, it comes with significant risks which could lead to costly and lengthy litigation and your final wishes being disregarded. As is the case with most legal matters, the safest option is to consult with an experienced Wills and estates lawyer to ensure that your Will is clear, certain, and enforceable.

If you have questions about Wills or another estate matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca.

This blog was co-authored by law student, Leslie Haddock.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

^[1] For example, see Niziol v Allen, 2011 ONSC 7457.

^[2] For example, see Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315.

^[3] 2021 ONSC 2919.

^[4] Ibid at paras 25-26.

^[5] Ibid at para 26.

^[6] Succession Law Reform Act, RSO 1990, c S26, s 7(3).

^[7] Bennett v Toronto General Trusts Corp, 1958 CanLII 49 (SCC) at p 396.

^[8] 2011 ONSC 7673 at paras 14-16 [Laframboise].

^[9] 2020 ONSC 7584 at para 30.

^[10] 2022 ONSC 4881 at paras 31-32.

^[11] 2003 CanLII 7157 (ON CA) at para 14.

^[12] Laframboise, supra note 8 at para 21.

^[13] Ibid at para 25.

^[14] 2022 ONCA 119 at para 51.

^[15] Ibid at para 67.

Estate distribution and the associated legal battles often bring forward intricate legal questions, especially when changes are made to wills or disputes arise among the beneficiaries.

In the recent decision of Santos et al v. Coghlan et al, 2023 ONSC 4862 from the Ontario Superior Court of Justice, the intricacies of estate distribution and the denial of using estate funds for trustees’ litigation costs were brought to light.

Background

Hans and Colleen Luettge, who married in 1987 and had children from prior marriages, made wills in January 2005. Their wills specified that the surviving spouse would inherit the deceased spouse’s estate. Upon the passing of the surviving spouse, the estate would be divided equally among their combined seven children.[i]

In August 2011, Colleen passed away, transferring a significant portion of her assets to Hans prior to her death.[ii] After Hans’ passing in May 2021, a legal dispute arose. It was revealed that Hans had made significant alterations to his will in November 2020, deviating from the initially planned equitable distribution among all seven children.[iii] Instead, he designated his four children as primary beneficiaries, providing $30,000 each to two of Colleen’s children and completely excluding one of her children, Terry, from any inheritance.[iv]

Litigation

The legal proceedings commenced when the applicants, Hans’ children, filed for a certificate of appointment of estate trustee with a will. The respondents, Colleen’s children, opposed by filing a notice of objection, contending that Hans lacked the mental capacity to formulate the 2020 will.[v] The applicants commenced an application on January 27, 2022, seeking, inter alia, an order to strike the respondents’ Notice of Objection and a declaration affirming the validity of Hans’ November 2020 will. Alternatively, they sought an Order for Directions. A hearing for the application was scheduled for June 14, 2022.[vi]

In response to the applicants’ request to strike their objection, the respondents presented evidence supporting their claims. They also extended a Rule 49 offer on April 25, 2022, allowing the applicants to withdraw their request to strike the objection and validate Hans’ last will with no cost implications.[vii] The offer also provided that the parties would consent to a mutually acceptable Order for Directions.

Order for Directions from Justice Phillips

The parties appeared before Justice Phillips on June 14, 2022, and a consent Order for Directions was issued on June 16, 2022. The order, among other things, provided that “the remaining relief sought by the Applicants in their Notice of Application is hereby dismissed” and that “the determination of costs relating to this appearance is hereby postponed to a date to be decided upon by any of the parties.”[viii]

The Order for Direction also explicitly stated that the Estate Trustee “may not distribute or disburse any estate assets, unless such distribution is approved under this Order or agreed upon in writing by the parties involved in this proceeding.”

Respondent’s Motion for Further Directions

The respondents later brought forth another motion for directions, pursuing two specific orders: Firstly, they requested costs associated with the applicants’ earlier abandoned attempt to strike their notice of objection. Secondly, they sought an order preventing the applicants from utilizing estate assets to cover their legal expenses.[ix]

Court’s Ruling and Analysis

The respondents’ motion for the specific orders hinged on the interpretation of the Order for Directions provided by Justice Phillips.

Entitlement of Costs

Kaufman JA found that based on the resulting Order of Justice Phillips, it can be inferred that the Offer was in fact accepted.[x]

The applicants agreed to no longer pursue orders striking the respondents’ Notice of Objection or affirming the validity of Hans’ November 2020 will. The applicants were also found to have consented to an Order for Directions agreeable to the parties. These terms aligned with the respondents’ offer.[xi]

According to the offer’s terms, if accepted after that date, the applicants would have to pay the respondents’ partial indemnity costs.[xii] Kaufman JA found that the applicants ultimately accepted the respondent’s offer after the specified deadline, and therefore should cover the respondents’ partial indemnity costs, which were fixed at $14,000.[xiii]

Coverage of Litigation Costs from Estate Funds

The Order explicitly stated that the Estate Trustee could not distribute or disburse any estate assets without approval under the order or written agreement from the involved parties.[xiv] While it granted the trustee the authority to manage the estate, including consolidating assets and paying the deceased’s debts, it did not directly address the funding of litigation costs.

Although the Court agreed with the applicants that trustees were generally entitled to reimburse themselves for expenses reasonably incurred in connection with the administration of the Estate without obtaining the beneficiaries’ prior consent or a court order, it nonetheless concluded that the Order for Directions precluded them from paying out litigation fees from the Estate.[xv]

The court argued that the listed actions in paragraph 14 (d) of the Order primarily pertained to the administration of the estate, as opposed to litigation concerning claims against the estate. Additionally, the court emphasized the need for equity and the importance of “maintaining a level playing field during estate litigation.”[xvi]

Kaufman J also noted that Colleen Luettge had transferred a significant amount of her assets to Hans during her lifetime, likely with the intention of those assets being shared among her and Hans’ children after his passing.[xvii] This created a situation where the applicants had ample resources to finance their legal battle against the respondents.

The Court ultimately ruled that the applicants were prohibited from paying any further legal fees in relation to this proceeding out of the Estate.[xviii] Additionally, the applicants shall reimburse the Estate for any legal fees incurred in this proceeding that have been paid out of the Estate within 45 days of the decision.[xix]

Conclusion

Santos et al v. Coghlan et al, 2023 ONSC 4862 offers a fascinating glimpse into the complexities and nuances of estate planning and inheritance disputes. It serves as a reminder that the court’s role in estate litigation extends beyond the mere interpretation of wills and distribution of assets. It also involves ensuring a level playing field and protecting the integrity of estate assets.

While estate trustees usually have the right to be indemnified for expenses related to estate administration, the court’s discretion and the specific details of an Order for Directions can impact their ability to use estate funds for litigation costs.

In this case, the court’s decision reflects a commitment to fairness and the maintenance of equitable conditions for all parties involved, making it a significant precedent in estate litigation matters.

For more information regarding Estates Litigation-related topics, please contact Kelli Preston at Devry Smith Frank LLP at (416) 446-3344 or kelli.preston@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Articling Student, Owais Hashmi.

[i] Santos et al v. Coghlan et al, 2023 ONSC 4862 at para 1.

[ii] Ibid at para 2.

[iii] Ibid at para 3.

[iv] Ibid.

[v] Ibid at para 4.

[vi] Ibid at para 7.

[vii] Ibid at para 9.

[viii] Ibid at para 11.

[ix] Ibid at para 5.

[x] Ibid at para 16.

[xi] Ibid.

[xii] Ibid at para 17.

[xiii] Ibid.

[xiv] Ibid at para 29.

[xv] Ibid at para 21.

[xvi] Ibid at para 34.

[xvii] Ibid at para 33.

[xviii] Ibid at para 41.

[xix] Ibid.

A Will is a legal document that sets out an individual’s wishes and instructions regarding the distribution of their assets and the management of their affairs after their death.

In Islam, the wealth of any individual is divided into two parts: Fara’id and the Wasiyyah. Fara’id represents two-thirds of the deceased’s property and must be divided as per the Shari’a (Islamic Laws). The Wasiyyah is a part of your Will that you are free to allocate any way you see fit.

Muslims have a religious obligation whilst alive to ensure their property will be distributed according to Islamic law and ensure certain responsibilities be carried out after their death.

In Ontario, if a person dies without a Will, Islamic or otherwise, his or her property will be divided according to the rules set out in the Succession Law Reform Act.

Our blog outlining the requirements for a valid Will in Ontario (Formal or Holographic) can be found here.

Similar to a secular Will, an Islamic Will includes the following provisions:

• Appointing an executor to manage your estate and distribute your estate after death;
• Appointing a guardian to care for your children and manage their inheritance until they reach adulthood;
• leaving assets from your estate to charitable causes or other family members; and
• Specify any debts that must be paid upon your death.

An Islamic Will also includes provisions that specifically address:

• Burial procedures;
• Preferences regarding autopsy and organ donation;
• Outstanding moral and religious obligations to be paid out of the estate;
• Permissible bequests (Wasiyyah) of up to one-third of the estate in total; and
• Division of assets according to Islamic inheritance rules.

Islamic Inheritance Rules (Generally)

The Fara’id is divided amongst three main types of heirs in Islam:

1. Quota-heirs: entitled to specific shares (i.e., husband/wife, son, daughter, father, and mother);
2. Residuaries: usually a combination of relatives that inherit as residuaries after the shares of the Quota-heirs is distributed (i.e., siblings, grandparents, nieces and nephews); and
3. Extended family members: any blood relative who is not a quote-heir or a residuary (i.e., paternal and maternal aunts and uncles and their descendants)

The Fara’id separates inheritance into “fixed” and “variable” categories. Typically, fixed shares will be given to one’s spouse and parents, with varying shares given to the children. The following is the inheritance percentage that each quota-heir receives:

• The surviving husband gets one-half of the deceased’s assets, or one-fourth of the assets if he has children;
• The surviving wife receives one-fourth of the deceased’s assets, or one-eighth of the assets if she has children;
• One-sixth of a share will go to each of the deceased’s parents.
• If the deceased left behind children, sons and daughters will each receive a 2:1 share of the remaining assets.
  • The rationale being that the male’s portion is given with the understanding that he will spend it on the entire family as needed. There are no such restrictions on a daughter’s inheritance; and
• The amount of a person’s Wasiyyah cannot exceed one-third of their total possessions.

Conclusion

It is important to note that interpretations and practices of Islamic inheritance rules may differ across Islamic schools of thought and legal jurisdictions. Consultation with a qualified Islamic scholar in conjunction with a lawyer is advised to ensure proper application of these laws in specific cases.

For more information regarding Wills, Trusts, and/or Estates related topics, please contact Kelli Preston at Devry Smith Frank LLP at (416) 446-3344 or kelli.preston@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Articling Student, Owais Hashmi*

Sources:

[1] https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf

[2] https://www.rhjdevonshire.co.uk/the-islamic-succession/

[3] https://islamicinheritance.com/islamic-inheritance-guide/

[4] https://www.islamicwillsusa.com/islamic-inheritance/

Wills are useful legal tools for deceased individuals to unequivocally communicate their last wishes. Most commonly, such wishes include funeral arrangements, how assets of the estate should be distributed, and the names of estate trustees (those responsible to execute the Will’s instructions). It remains true that it is not necessary for a lawyer to draft the Will for it to be legally enforceable. However, a lawyer’s contribution ensures that the Will is drafted appropriately for the estate to be administered and dealt with according the wishes of the deceased, and in accordance with applicable laws. This is especially true if an individual intends to exclude certain persons from being beneficiaries or wishes to donate some of their estate to a charitable organization..

Often, individuals pass away without leaving behind a valid and unambiguous Will. This can be the situation if the individual did not create a Will before passing, or had left a Will, but one that is not valid according to given legal principles. In both examples, that individual is considered to have died “intestate” – and the distribution of the estate will be in accordance with the rules of intestacy.

There is an additional caveat worth noting; it is possible for the deceased to be deemed to have died intestate, even having left behind a valid Will. This might be the case if the individual has failed to address the distribution of all the assets of the estate, has listed a person as a beneficiary who has predeceased the individual, or has provided for a benefit to an organization that no longer exists. These examples are referred to as a ‘partial intestacy’. Accordingly, the Will governs the distribution of the deceased’s estate to the extent of the validity of the Will, and the statute (the Succession Law Reform Act (the “Act”)) governs the remaining portion.

The rules of intestacy are numerous, and they are nuanced. For this reason, this article provides a high-level discussion of only the most common circumstances – when the intestate individual was single, a common law spouse, or a married spouse. Part 2 of the Act deals with distribution on intestacy.

Single Persons and Common Law Spouses

In Ontario, only a person of the same or opposite sex who was married to the deceased is entitled to inherit from the deceased’s estate under the Act (s. 1(1)). Common law spouses have no statutory entitlement to the deceased’s property. The same holds true for married spouses who were separated at the time of the deceased’s death (s. 43.1), which came into effect January 1, 2022. In such situations, the distribution of the estate will ‘trickle down’ to the next of kin – children, grandchildren, and so on. The definition of spouse in the Act (s.57) has been expanded to include two people who are not married but have cohabitated continuously for three (3) years, have some permanence, and are parents of a child. Subsequently, common law spouses can apply to become the personal representative of the estate. A common law spouse can also bring an application for support if s/he is a dependant spouse.

Married persons

If the diseased has died leaving behind a married spouse, and no issue (a term used to encompass children born within the marriage, outside of marriage, and adopted children), then the surviving spouse will inherit the estate absolutely (s. 44).

Spouse and Issue

If the deceased individual has left behind issue, then the spouse is entitled to a ‘preferential share’ (s. 45) plus a portion of the residue. Currently, the preferential share amount is $350,000 in Ontario (O. Reg. 54/95). If the estate is less than this amount, then the spouse is entitled to the estate absolutely (s. 45(1)) regardless of the amount of issue. However, the application of this rule can become more caveated if the individual has died partially intestate. In this case, the spouse’s entitlement of the preferential share is reduced by the amount, if any, she/he received under the deceased’s Will. Similarly, where a spouse is entitled to less than the preferential share under the Will, the spouse will get ‘topped up’ to the preferential share amount from the portion of the estate that is intestate.

If the value of the estate is greater than the amount of the preferential share owed to the spouse, the spouse will be entitled to the full amount of the preferential share plus a distributive share of the remaining portion of the estate. The distributive share will depend on the amount of issues the deceased left behind. If the deceased only left behind one child, then the amount remaining will be divided equally between the spouse and issue (s. 45(2)). If there are two children, the amount remaining will be divided into three portions (1/3 for spouse, and 1/3 to each of the children) (s. 45(103)), and so on.

In practice, the application of these rules depends on a number of factors. An intestate individual who was pre-deceased by an issue or left behind an issue who was financially dependent on the individual for health reasons, are examples of situations that can affect the division of the estate. It is important to speak to a Wills and Estates lawyer to ensure that your estate is administered according to your desire. To schedule a consultation please contact Dayna Devonish – Montique at (705) 526 – 9325, ext 203, or by email dayna@prostlaw.com.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such, If you require legal assistance, please see a lawyer. Each case is unique and lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs”.

Wills are a powerful tool that people can use to ensure that their families and loved ones are cared for after they pass away. The purpose of a Will is to convey the Testator’s wishes regarding the distribution of their properties and assets.

Although not mandatory, Wills are often drafted by a lawyer. For a Will to be validly executed, section 4(2) of the Succession Law Reform Act, R.S.O., 1990, c. S.26 (“SLRA”) states that a Will must be signed at its end by the Testator (or some other person in the Testator’s presence by the Testator’s direction) in the presence of two or more attesting witnesses who will also subscribe the Will at the same time. More specifically, in order for the Will to be deemed valid in Ontario, the SLRA requires the two witnesses to be present when the Testator signs and dates the Will.

Due to the COVID-19 pandemic, several provinces have implemented virtual witnessing of legal documents. Effective August 1, 2020, O. Reg. 431/20 was enacted to permit remote commissioning in Ontario. In order for Wills to be witnessed remotely and in counterpart, at least one of the witnesses must be a lawyer licensed by the Law Society of Ontario. “Remote witnessing” means that the signing of Wills can be completed with audio-visual communication technology. “In counterpart” means the witnesses can sign their respective copies of the Will. Furthermore, all the signed copies must be kept together in order to finalize the Will. Wet signatures on paper documents are still required in Ontario.

Such Wills are known as a “Formal Will”. A Formal Will is the best way to convey the individual’s wishes and intentions regarding their Estate.

Requirements for Formal Wills

• The Will must be created by an individual of sound mind, and over the age of majority in Ontario (age of 18);
• The Will must be made by the Testator – no one else can make it on their behalf;
• The Will must be signed in the “presence” of two valid witnesses;
  • A witness should not be a beneficiary or the spouse or parent of any beneficiary;
• The witnesses must sign the last page of the Will together with the Testator;
• The Will must be signed in “wet ink” (a pen, seal, or other identifying mark) and stored as a physical copy.

The second kind of Will recognized in Ontario is known as a Holographic Will. According to section 6 of the SLRA, a Testator may make a valid Will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

Requirements for Holographic Wills

• The Holographic Will must wholly be the handwriting of the Testator;
• The Holographic Will must be signed by the testator at the end of the document;
• The Holographic Will must contain a “deliberate or fixed and final expression of intention as to the [Testator’s] disposal of property upon death”;
• Any gifts ‘below’ the signature are NOT be valid;
• Holographic Wills do not require witnesses;
• Holographic Wills do not require a date (although this can be very helpful).

Changes to Existing Wills

A Codicil is a legal document that is used to make minor modifications to an already existing Last Will and Testament. A Codicil has the same signing requirements as a Formal Will. In order to create a Holographic codicil, the entire amending document must be handwritten, with the date and signatory at the end of the document.

Codicils are typically used for the purposes of changing the name of an executor, guardian, or beneficiary, or adding or deleting specific bequests. It is generally not recommended to have more than one Codicil to your Will as multiple documents may lead to a misinterpretation of the Testator’s intentions.

The Case of Lacroix Estate, 2021 ONSC 2919

The Testator, Rebecca Lacroix, instructed solicitor Margaret Opatovsky to prepare her Will while she was hospitalised with late-stage cancer in 2020. Due to COVID-19 restrictions, Opatovsky was unable to visit Lacroix in the hospital to have the Will properly executed. Consequently, she delivered the typewritten Will to the hospital and advised Lacroix to create a Holographic Will incorporating the draft Will.

Accordingly, Lacroix stated in a handwritten note:

“I, Rebecca Stephanie Lacroix, declare that this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes.”

She attached this note to the draft Will and initialed each page.

When the Estate Trustee named in the draft Will applied to the Court for a Certificate of Appointment, the Court denied the Application.

The Court examined sections 6 and 7 of the SLRA and found that the Holographic Will satisfied the requirements under the Act to be valid. However, the Holograph Will alone was not a valid testamentary document, as it did not independently dispose of any property.

Moreover, the Court noted that a Holographic Will cannot incorporate by reference a typewritten document, and the Holographic Will must be wholly in the deceased’s handwriting.

Recent Legislative Amendments

The Accelerating Access to Justice Act is a large omnibus Bill that amends various Ontario statutes and regulations, including the SLRA.

As of January 1, 2022, Schedule 9 amends the SLRA by adding section 21.1 to give the Superior Court of Justice authority to, on application, make an order validating and rendering fully effective a document or writing that was not properly executed or made under the SLRA if the Court is satisfied that the document or writing sets out the testamentary intentions of a deceased, or an intention of a deceased to revoke, alter or revive a Will. Electronic Wills form an exception to this provision.

Previously, Ontario adhered to a strict compliance regime such that the Court had no discretion in determining a document as constituting a valid Will if it did not fully comply with the requirements prescribed by the SLRA. Now, under section 21.1, improperly signed Wills are treated with more flexibility such that the Superior Court is authorized, on application, to determine a non-compliant Will valid.

It is important to note that one can only make an application under section 21.1 where the date of death of the Testator is on or after the effective date, being January 1, 2022.

Conclusion

Recent amendments to the SLRA show that the law governing Wills and testamentary documents in Ontario is gradually but steadily evolving. However, Ontario legislators should take a cue from other provinces, such as British Columbia, where digital signing of Wills by Testators is now legal. Courts should also work to clarify the law governing the inclusion of typewritten documents in Holographic Wills.

For more information regarding Wills, Trusts, and/or Estates related topics, please contact Kelli Preston at Devry Smith Frank LLP at (416) 446-3344 or kelli.preston@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Owais Hashmi*

A Will serves the function of expressing the testator’s last wishes. However, for public policy considerations, not all requests should be granted. While putting conditions on how the beneficiary uses or receives the gift is permissible, there are requirements testators must follow if the gift is to be legally acknowledged.

Condition Precedents

A condition precedent in the context of wills is a condition or occurrence that must occur before the gift can be acquired.

Examples of Valid Condition Precedents

• To receive the money set aside for them, the beneficiary must complete college within 5 years.
• The beneficiary must marry before obtaining the automobile left in the testator’s estate.
• The beneficiary cannot get the testator’s shares in Company X until they turn 22.

Conditions should be written in a specific way in order to give the condition a reasonable chance of being followed.

A gift cannot, among other things, impose an unreasonable restraint on the beneficiary’s ability to marry, require the beneficiary to commit a crime, or discriminate against others on the basis of race, religion, or nationality. There is no exhaustive list of voidable conditions.

Conditions Subsequent

A condition subsequent imposes a condition after the gift has already been received. Specifically, a condition subsequent revokes a gift if a specific event occurs. For instance, a testator leaves land to a specific beneficiary on the condition that the beneficiary never constructs a commercial building on it.

In most cases, testators cannot rule from the grave, meaning that if you leave certain assets or gifts for certain individuals, you cannot unduly restrict their use of them.

The In Terrorem Doctrine

In certain cases, it may be necessary to challenge the terms of the conditional gift in the Will. An In terrorem clause is a conditional gift in a Will, wherein a beneficiary will lose all entitlement to the gift if they breach or fail to adhere to the condition attached to the gift. It is generally used by a testator to encourage or dissuade particular conduct by a potential beneficiary.

In the British Columbia Supreme Court decision of Kent v McKay, the Court held that for the in terrorem doctrine to apply and to find the condition in question void, the following three conditions must be met:

1. The legacy in consideration must be real property, personal property, or a combination of the two;
2. The condition must be in restraint of marriage or one which forbids challenges to the Will; and
3. The threat must be “idle”; that is to say that the condition must be imposed solely to prevent the beneficiary from undertaking that which the condition forbids.

If the condition meets the standards of the in terrorem doctrine, it will be deemed null and void, and the gift will be absolute, regardless of whether there was a preceding or succeeding condition. According to this principle, a court will not uphold a no-contest clause that is a “mere” threat.

In order to be enforceable, a no-contest condition usually requires the designation of a substitute beneficiary for the gift (either a particular person or the residual estate). By doing so, the threat becomes “real” because an actual provision is made to gift another person (i.e., a “gift-over”).

Public Policy Prevails

The Will under question in Kent contained the following no-contest provision:

“I HEREBY WILL AND DECLARE that if any person who may be entitled to any benefit under this my Will shall institute or cause to be commenced any litigation in connection with any of the provisions of this my Will other than for any necessary judicial interpretation thereof or for the direction of the Court in the course of administration all benefits to which such person would have been entitled shall thereupon cease and I hereby revoke all said benefits and I DIRECT that said benefits so revoked shall fall into and form part of the residue of my Estate to be distributed as directed in this my Will.”

In determining whether the aforementioned no-contest clause passed the three-part test, Justice Lander found that it was not in terrorem because it contained a gift-over provision to the residue, which was sufficient to pass the test’s third requirement.

However, the Court noted that despite the no-contest clause surviving the in terrorem doctrine, the clause was nonetheless void for public policy reasons. The no-contest clause, according to Justice Lander, was intended to prohibit any litigation in connection with any of the provisions of the Will. Therefore, it would have prevented a beneficiary from exercising their legal right to request support for dependents.

Conclusion

Although an individual is free to manage their estate however they see fit, the Kent decision demonstrates the limits of testamentary freedom when provisions of a Will are inconsistent with public principles or may cause social harm. The decision has been followed in a number of jurisdictions in Canada, including Ontario.

For more information regarding Wills, testamentary gifts, or any other trusts and estates related topic, please contact Colleen Dermody at Devry Smith Frank LLP at (705) 408-0344 or colleen.dermody@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Owais Hashmi*

[1] Kent v McKay, [1982] 6 WWR 165

It’s wedding season! There are new laws that impact your marriage and your future!

You are planning a wedding – the checklist is complete – but have you thought about your Will? Do you have a Will? Have you considered what happens when you get married?

There are many hard conversations that happen when you get married! Your wishes for the future are one of those conversations. Getting your estate in order, after marriage, is important to ensure your new spouse and/or children are provided for financially in the future.

You are not only changing your legal status, your future financial status will be changing also. As a married person, you may now file taxes together, share your income and expenses together, and buy property together – most importantly, you will now be recognized by the government as a married individual whose assets (upon death) need to be allocated according to certain laws. Once you understand these laws, your future estate plans can be shaped accordingly.

As of January 1, 2022, Bill 245 came into effect. The Succession Law Reform Act has a variety of changes – one notable one is the changes to the marriage provisions.

In order to determine how to plan your future with your spouse, you will need to determine which criteria apply to you –

1. I have an Existing Will

It might surprise you to know that before January 1, 2022, if you had a will and later married – your will automatically revoked. This is not the case now – your marriage will no longer revoke your will.

Now, if you get married, your will stays intact and whomever your Will assigns as beneficiaries, will remain.

This is an important time in your life. Marriage brings about many changes and documents to sign – one important one to consider is your Will. Ensuring your intentions are met for your future is an important consideration.

2. I don’t have a Will

If you die intestate (without a Will), your spouse will receive the first $350,000 of your estate. The remainder will be distributed between your spouse and your children. A lawyer can assist you in developing a plan for your future that meets all your intentions.

3. I want to make a New Will

With a wedding under your belt, and looking towards your future – it is a great time to discuss what you can control about your future. Is your wish to ensure that your spouse and your future children (or existing children) are protected and provided for? Then you will need to specify this in a new Will.

4. I have a previous spouse – Separation and Divorce

Under the previous legislation – a separated spouse had property rights. Under the new legislation, even if you are not divorced yet, separation will be treated as if you are legally divorced when it comes to your estate. You will be considered separated if you have been living separately and apart for 3 years, have a separation agreement, or a court-ordered separation agreement.

If you left any gifts to a separated spouse, these will now be revoked. The Will will be viewed as if the separated spouse predeceased you (unless there is wording to the contrary in the Will).

Under the Family Law Act, these changes also reflect the entitlement to reflect as $0.

Don’t let writing up a Will confuse you; our friendly lawyers are here to assist.

If you have more questions related to Wills and Estates, please visit our website or contact Tracey Rynard at Devry Smith Frank LLP to discuss any questions regarding Wills and Estates and your options at 249-888-6647 or tracey.rynard@devrylaw.ca.

This blog was co-authored by Summer Law Student, Kathleen Judd.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

It is a common assumption among estate trustees that in order to administer an estate, a deceased’s Last Will and Testament must always be probated; that is, submitted to the court along with an application and supporting documents in a process whereby the court examines such Will in order to determine its validity and authenticity, as well as to ensure that the proper estate trustees are appointed and beneficiaries notified. Where a deceased passes away without a Will, the probate process ensures that estate trustees are appointed in accordance with legislative rules.

A brief note on terminology: the term probate is no longer officially used in Ontario. It has been replaced with a Certificate of Appointment of Estate Trustee With or Without a Will, or, in other jurisdictions, Letters Probate or Letter of Administration.

Despite that where a Will exists the authority of the estate trustee(s) is derived from the Will itself, a Certificate of Appointment of Estate Trustee serves as an assurance to third parties that the estate trustees are the proper appointees and have authority to deal with the deceased’s assets. For example, many financial institutions are reluctant to release the money to estate trustees without a Certificate of Appointment because of the liability that they may incur as a result of releasing money to an estate trustee under an invalid Will or an estate administrator who is not entitled to act. Equally, purchasers of a deceased’s real estate will seek to ensure that a Certificate of Appointment of Estate Trustee has been issued prior to the closing of the transaction. Third parties rely on the probate process to ensure that estate property is being held by individuals with the authority to do so and is transferred to the appropriate persons.

Some assets, however, can be transferred without a Certificate of Appointment, either because of their nature or their ownership. These include vehicles and vessels, jointly owned assets (which pass by right of survivorship or must be dealt with in accordance with the Will under presumptions of resulting trust), real property falling under the first dealings exemption, and registered accounts with designated beneficiaries. Accordingly, it is important to ascertain the nature and ownership of the deceased’s assets prior to commencing the probate process in order to ensure that estate property is dealt with in an expedient and cost-effective manner.

Crucially, whether or not a Certificate of Appointment of Estate Trustee is issued, estate trustees remain responsible for accurately identifying the deceased’s property, ascertaining its value, ensuring that all taxes and debts are paid, and distributing such property in accordance with the deceased’s Last Will and Testament or, where a person died without a Will, in accordance with legislative provisions.

Please feel free to reach out to any of Devry Smith Frank’s estate administration lawyers to learn more about whether or not probate is required in an estate for which you have been appointed as trustee.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”